Bush said he was acting in accord with the "overwhelming consensus" of Americans. The "voice of the people" must be heard, he said, in the face of "activist judges" and local officials who are allowing gay marriages. He specifically mentioned recent court rulings in Massachusetts and the issuance of same-sex marriage licenses in San Francisco.

"If we are to prevent the meaning of marriage from being changed forever, our nation must enact a constitutional amendment to protect marriage in America," the president said in a televised appearance in the White House Roosevelt Room.

I still don't think it will happen -- and just to be clear, I sure as hell don't think it should happen. [But the "voice of the people"?--ed. Yeah, I'm pretty sure the voice of the people would have supported a flag-burning amendment back in 1988, but that would have been an equally dumb-ass amendment. The Republic is still standing despite that non-action, by the way.]

A question -- is this a proposal that Bush genuinely believes in and is exploiting for political gain, or is this a proposal that Bush knows won't become law and is exploiting for political gain?

Discuss below.

UPDATE: Good discussion!!

ANOTHER UPDATE: It goes without saying that Andrew Sullivan will be the place to go on this topic. This post makes an excellent point about the fact that the "full faith and credit" clause in the Constitution does not apply to marriage.

A modest proposal – what if government divorced itself (pun only slightly intended) from the marriage business altogether? If the most that a heterosexual couple could get from government was a recognition of a civil union or domestic partnership, would that not satisfy most people?

I think he genuinely believes this, and for as much as people speak of political gain...among who really? I mean look at all the blogs, media, etc. He's got a tough road to hoe. And I don't know that it's the for sure winner that everyone makes it out to be.

I don't know of anyone who thinks it could pass the Senate. It's also not much a poltical gain (48/46) outside of Evangelicals. When they threaten to stay home, stuff starts happening. It seems the idea is that it isn't Plame, WMD, or Jobs and it isn't likely to backfire- so there's no reason not to passify the base. He probably doesn't much like the "Sin"- but I doubt his heart is in the amendment. Seems like a crass Rove maneuver.

I think President Bush's hand was forced by the carnival in San Francisco. Voters overwhelmingly support the definition of marriage as the union of one man and one woman. Hence, proponents of gay marriage have to use the activist judiciary to impose their agenda. One of the greatest aspects of our political system is the use of checks and balances. The judiciary has gotten a little ahead of themselves and the other two branches of government are responding to check their usurpation of power. The gay marriage movement has been making steady headway for the past several decades and would have eventually achieved their goal with a little more patience. Like it or not, the general populace was unready to make this leap at this moment in time and of course does not want to be dictated to by judges or politicians. By putting forward the FMA, which I hope will leave out the language that attempts to prevent civil unions, the President is giving the people, through their respective congressmen, senators and state legislatures the ability to chart their own course. We will just have to see if 38 states will ratify the ultimate amendment, which I am pretty sure they will. I am for civil unions with all the rights one could want, marriage is ahd shall remain what it has always been. One man, one woman. Believe me, Bush didn't want to touch this with a ten foot poll and neither does any other smart politician.

I don't think Bush believes in much of anything. His White House is a wonk-free zone, or at least any wonkish judgment is easily shunted aside if Rovish considerations require.
But since he's a Christian of sorts, in a half-therapeutic, half-loopily-scriptural way, he probably does believe (in a weak-kneed way) that Paul's condemnation of homosexual conduct is correct.
Still, it's not the personal belief (conviction is not the apt word) that motivates him. It's his judgment he has to throw the lions to his right red meat.

CA can take care of itself. The Attorney General seems confident that they'll win in CA courts. Federal intervention is WAY premature. Besides, he leaked support well before the CA events. That's just spin. I'm surprised people buy it.

You ask "A question -- is this a proposal that Bush genuinely believes in and is exploiting for political gain, or is this a proposal that Bush knows won't become law and is exploiting for political gain?"

I'm not a supporter of gay marriage, but I'm not unalterably opposed either. However I do think if it comes it should be thru the political process, not by judicial fiat. If the Amendment passes then the Mayor of San Francisco, and the Justices in Massachusetts, Vermont, and Hawaii, should stand up and take a bow, because they deserve the credit.

Bush's success will depend on the Democrats being unable to turn this into a case of States rights.

"The Republicans want to abrogate the States' constitutional right to determine who should or should not be allowed to marry. If the people elected a State government that did decide to allow gay marriage and refused to back down, the Republicans want to give the federal government the right to overrule the State and if necessary dissolve the state government to prevent it from exercising its historic right."

Of course, it's over the top (and it would apply to any law that a State made that was in violation of the consitution), but it's the sort of rhetoric that the Democrats will likely start using. Far easier than defending an unpopular platform.

In my view, the "does he believe it or is this just political expediency" question is irrelevant. Who knows? And what difference does it make? There is, I understand, a similar academic controversy among scholors who study Hitler, the Nazis and WWII -- i.e., did Hitler really mean all that anti-semitic stuff or was he simply exploiting German anti-semitism to achieve his evil goals? Now, before any of you Bush-fans out there blow a gasket, I'm not comparing Bush to Hitler. I mention Hitler only to make clear, by posing it in the most extreme context, that the answer to Dan's question is "so what?". Hitler did the World incalculable harm. That's what counts. And the President's position on gay marriage is destructive and wrong (in my view). That's what counts for me.

I endorse gay civil unions, but not marriage. Can anyone remember when my (and Howard Dean’s) position would have been perceived as radical? A purely secular society must restrict marriage to a man and a woman. There is little chance that a constitutional amendment will pass---and President Bush knows it. He does, however, believe that this is the right thing to do. Thus, it would be incorrect to charge him with hypocrisy. There are many instances when the Bush administration put its wet finger into the air to see which way the winds blows. This is not one of them.

Will this decision increase Bush’s reelection chances? Yup, the Democrats must now abandon any realistic hope of capturing the South. Placing John Edwards on the ticket would be a complete waste of time. He has just lost his reason for continuing the race.

I agree with the above comments. Yes Bush agrees with it, yes he doesn't expect it to pass, and yes he's exploiting it for political gain.

I see a clear parallel with the Civil Rights movement in the 60s. Remember that laws against mixed race marriage were common and had even more popular support than this has today. Today, we know who was on the right side of that issue (well, most of us do anyway). But politically it was and still is a disaster for the Democratic party (i.e. it created the solidly Republican south )

Marriage (today) seems to me an inherently civil act. Courthouse, license, blood test, even divorce can be thrown in there. There are prescribed, definitive benefits and legal recognition for this civil act such as medical care directives, tax differences, and clear inheritance issues. So why shouldn't marriage be a civil right?

Marriage as a moral and religious act, where I see the vast majority of anti-gay marriage indignation pointing to as being threatened, is already protected. A Catholic priest can turn away a Protestant couple. A Southern Baptist pastor can turn away a Buddhist couple.

Am I naive in my understanding of the issue? 50 years ago--hell, 20 years ago--this would have been an amendment barring interracial marriages.

Yes to all three from me as well. This is a dangerous game though. I think Bush didn't really believe the recent campaign finance reform bill would survive Supreme Court scrutiny, but it did. I don't like this sort of gambling with the possibility of curtailing freedoms.

I am of mixed feelings about the issue of gay marriage itself, and I think I understand many of the arguments on both sides. For this reason, a constitutional amendment on EITHER side is not the smart way to go. Bush has been forced, however, to take some kind of action, in the face just plain lawbreaking by an out-of-control city government. (But why, I ask innocently, didn't Governor Arnold deal with that issue?) It's the screwing around with the constitution that worries me.

Maybe this can't pass muster in congress anyway, but if this comes to some kind of vote, Bush has now handed all sides an incredibly hot potato.

Ask a psychic. But he seems kind of late to the table on this one, which suggests political calculation rather than belief.

2. Does Bush know the amendment will not become law?

My guess here is that he has been reading Karl Rove's one paragraph summary of your blog, and that he has been fully briefed on the problem. But he also has heard Karl's analysis that this will get the evangelicals out to vote for both him and their state legislators. End result is good for Bush, and good for Bush's party in an area where a national issue has in the past rarely had much effect. To turn Dave's arguments on their head, this is a net zero for Bush (Andrew Sullivan and like-mindeds are mad, but evangelicals are energized). But it might be a very good thing for the party.

3. Is this good policy?

Good heavens, no. If folks cared more about the institution of marriage, as opposed to their prejudices, they'd ralize that, in creating the concept of "civil unions" (better known as marriage, sort-of), they are creating an unstable, but viable alternative to marriage. And questions are begged. What happens when the civil union breaks up? Alimony? Property settlement? Fist fight, to determine who keeps the dogs and collection of salsa music? Does a civil union change the will? People know what marriage is. What's a civil union, and what defines its bounderies? When two people want to come together, sacrifice some of their rights and priveleges, for the benenfits and responsibilities of marriage, why on earth should society's answer be the ambiguous meaninglessness of the Vermont civil union?

I think the Left is doing a good job of shifting burden. The judge in Alabama who ignored the law was ousted. He was a bad man. The judge in the Bay Area who is ignoring the law still sits. Does anyone know his name?

As for "full faith and credit", can we get that to apply to concealed carry, please?

Notwithstanding the spectacle in San Francisco and the remarks of the White House's empty-suit Press Secretary the thing that forced Bush's hand was the decision some weeks ago by the Massachusetts Supreme Court.

Politically I'm sure he felt compelled to respond to the conservative evangelicals. But as a practical matter what he is trying to do is preserve the legal status quo with respect to marriage, something the Massachusetts decision threatens to overturn (unless states start abandoning the long tradition of honoring marriage contracts entered into in other states, which would not be desirable either). I'm not clear that there is a way to do this short of a constitutional amendment.

I'd be open to suggestion on this point, since I oppose amending the constitution as a general rule. And personally I would gladly live out my days without ever having to have another discussion of gay marriage. Having said that, maintaining the legal status quo with respect to marriage is an objective I agree with. If the American people decide to change it legitimately through the political process, I might regard it as a defeat, but not a catastrophe -- laws may reflect change (or, if you prefer, advancement. Or decay) of a society's moral content, but they do not often cause it.

But it is not acceptable to have a major change in one of society's most important and durable institutions imposed by a decision of one state court. I understand there are people who want this change, feel deeply frustrated that most people do not agree with them, and are quite comfortable with the majority opinion they find so distasteful being ignored, however arbitrarily. It does not surprise me that people holding this minority opinion should have a low opinion of those holding the majority view, even thinking them bigots, haters, religious fanatics or simply ignorant uncultured slobs. I am a little surprised that so many have so little regard for the procedures and traditions of representative democracy that as much as anything define who Americans are as a people, and are quite prepared not only to discard them over this issue but to heap all sorts of abuse and contempt on a President seeking to uphold both the majority view and centuries of tradition.

Scott and TexasToast have the perfect response to FMA and I couldn't agree more. Marriage is a personal and frequently religious event. In terms of the government's role, it's a contract that grants certain rights. If the government wants to pass laws about this contract, how about "it can only take place between 2 consenting adults, and once you're in a contract with one person, you can't be in it with another unless the first is cancelled". The rest is up to the individual and any religious authority the individual may choose to recognize.

Just once, I'd like someone to explain how if the "sex" requirement for marriage violates civil right, the idea that it being only TWO people doesn't?

What civil right are gays currently denied, anyway? They can buy a house together, set up a living trust and even have a little ceremony.

This isn't about "rights" it's about sending a message. Gays got equality years ago, now they're crossing the line into demanding that society restructure its core institutions for them.

You see, the laws against racial intermarriage WERE about civil rights and they were there to prevent CHILDREN from mixed marriages. They were about racial purity as much as keeping blacks in their place.

Gay marriage is utterly different: gays are able to get partner benefits, draw up powers of attorneys and even adopt kids. THEY HAVE EQUAL RIGHTS.

The parallel with black civil rights is therefore bogus, but gay marriage supporters have to try to graft onto it because their own case is so weak.

This is a vanity project: something that will benefit only the smallest of minorities. Not all gays will marry, most probably won't.

Again, it's about sending a message and poking a stick in the eye of people with traditional beliefs, everything else is just cover.

"Gay marriage is utterly different: gays are able to get partner benefits, draw up powers of attorneys and even adopt kids."

The last point is inaccurate. In many States, gays are not allowed to adopt kids, and when they have one of their own, its biological parent is considered to be the legal parent, leaving the gay partner with no parental rights, whatsoever. Parental rights cannot be drawn up by an attorney, and in this sense, it does bear resemblence with the civil rights struggle against the anti-miscenegation laws.

The Internal Revenue Code grants priveleges, deductions, etc to people who are married under local law, and not all employers offer domestic partnership benefits. So, no, gays do not have equal rights.

People seem to lose sight of the fact marriage was NEVER an issue of equal rights. Marriage is a mechanism to protect women and children from the vagaries of men's worldly impulses. Gay marriage proponents feel they are promoting the institution of marriage; this is ONLY true if they are ALSO for eliminating no-fault divorce and other issues that have wrecked the institution of marriage for heteros....

There is nothing noble in the cause of gay marriage if it is only to get their syndicated version of gay/lesbian Bachelor/Bachelorette....

Actually, marriage, as commonly defined in the united states, became popular in Western Europe in about the 7th Century when the Catholic Church started to make it a set of legal obligations between two people and Christ to held settle....

Property disputes.

I'm serious. Go look it up. I think it was the guy before Pope Gregory who had enough of this living in sin stuff, and was tired of dealing with inheritance suits. He also codified the concept of bastardization and sex out of wedlock as "sin". Previously the Church's adherence to the older Roman/Greek/Jewish forms of matrimony weren't appreciated by the Gauls, Celts, and Anglo-saxons who had their own, older traditions.

Oh, and I hate to tell you this, but "Marriage is a mechanism to protect women and children from the vagaries of men's worldly impulses" is, how to say this, naive. Go tell the wives of Henry VIII how marriage was "protection".

I thought were past the women has property arguements, but apparently not.

Carolina
breadwinner in her family, who fears no man's worldly impulses

Part of Bush's reasoning for this amendment seems to be that there it is nearly certain that the United States Supreme Court will rule that, because one state (most likely Massachusetts) has issued marriage licneses to same-sex couples, the Federal Defense of Marriage Act is unconstitutional and every other state must recognize them. Such a supposition is both extremely presumptuous and absolutely ludicrous.

First, courts have long ruled that a state need not recognize a marriage from another state if that marriage offends the former state's public policy. Furthermore, the U.S. Supreme Court just figured out last summer in the Lawrence case that gays shouldn't be put in jail for having private, consensual sex! To think that now Anthony Kennedy and Sandra Day O'Conner will rule that gay marriages must be recognized nationally is simply implausible. The majority opinion in Lawrence (and O'Conner's separate opinion) explicitly stated that this decision has absolutely nothing to do with the legal status of same-sex couples. As Dale Carpenter puts it, "We should not tamper with the Constitution to deal with hypothetical questions as if it were part of some national law school classroom."

Regarding the politics of Bush's endorsement, I'm sure that support for the amendment will go up now that it has Bush's name behind it. I also think that for this election year and for the visible future this will galvanize his conservative base and solidify his hold on the South and help him win over social conservatives in the Midwest. HOWEVER, I think that this endorsement has much more serious and perilous long-term implications. Bush has caused an enormous defection of gay and lesbian voters from the Republican party for decades. So what you might say? Gays only make up a miniscule part of the population. BUT -- almost all polls also show that the under-29 crowd is far more tolerant of gays and gay marriage, and that a substantial percentage of them, rightly or wrongly, do view this as a civil rights issue. They will also remember this and associate the Republican Party with homophobia for decades. In 2020, I could easily see Republicans wishing they had never done this.

1) Anyone who opposes gay marriage to protect the institution of marriage should also abolish Vegas style weddings (paging Britney) and make both *getting* married and getting divorced a lot more difficult. Think, for example, of mandatory waiting periods for both marriage and divorce to become official.

2) Anyone who says that marriage is not necessarily between a man and a woman will need to answer Alec's objection above, namely why keeping marriage for heterosexual couples only is breaking civil rights, whereas keeping marriage for two people only is not. What, according to the advocates of gay marriage, is the essence of marriage? If it is not 'the love of a heterosexual couple', understood as a union for the purpose of raising children, but simply 'the love of a couple', regardless of the ability to have their own children, how are we to prevent sliding to a definition of marriage that merely says 'love'? And if it is merely love, why exclude marriages between siblings, other family members, or marriages with and between animals? Laugh at your peril, especially at a time when animal rights activists keep reducing the gap between animals and men by lowering the status of man and elevating the status of animals. Gay marriage would have seemed absurd even five years ago. Caligula made his horse a consul of the Roman Empire. Nobody was laughing then.

I think it is more idiocy from Karl Rove. I think Rove saw the polls that say 60%+ oppose gay marriage and thought that must mean Bush could get a few more votes by proposing an amendment. It doesn't work that way, Karl. I guarantee Bush has lost votes with this dumb move.

The problem for Bush now is that he may lose the swing voters who want a vigilant pursuit of the war on terrorism, are fiscally conservative, but socially liberal.

Actually, most swing voters are “socially moderate”(1) which is not the same thing as “socially liberal.” Polls consistently show that by a two-to-one majority, people support the definition of marriage as a man and a woman. Which is why the federal DOMA(2) and the State’s versions passed handily though legislatures and referendum alike – even in a more liberal States like California.

Bush will probably not lose any votes by his stance as it reflects the consensus of society but it will help to energize his base and maybe get the six million or so evangelicals who were reported to have sat out the 2000 election to turn out and vote.

TW

(1) Most people support capital punishment banning flag desecration, the traditional definition of marriage, oppose racial preferences, and some restrictions on abortion – none of which are “socially liberal” positions.

(2) Including my own State’s late Senator Paul Wellstone and signed into law by Democratic President Bill Clinton.

One argument against polygamy is that there'd have to be a way of separating "real" polygamous relationships from the sort of cultish not-entirely-voluntary polygamy you find in extremist Mormon offshoot sects. In such sects, it's more like "wife hoarding" than marriage. There's just a bunch of dysfunction there.

Another issue would be the 'marry lots of men/women to collect their government checks' issue.

These make it tricky, because there's more potential for abuse of the system. But that's not necessarily an argument for an all-out ban.

I'm sure there are a few actual, loving, long-term polygamous relationships in existence, and I wouldn't have any real objection to letting *them* get married. These would likely be among adults were not raised in a polygamous subculture like the Mormons, yet who still found themselves in such a relationship, by choice.

The Bible certainly isn't a good source for arguments against polygamy. Plenty of honorable men in the Bible had multiple wives. The wisdom of Solomon is proverbial, he built the first Temple, and yet he had, what, thousands of wives? A polygamist was good enough to build the Temple. With the Ark of the Covenant in it and everything.

I'm a bisexual student at Vanderbilt; I have a fiancée, and we'll be married when I graduate. I count myself extraordinarily fortunate that she's of the right gender.

I'm frequently disturbed when people point to the promiscuity in the gay ("non-lesbian") community as a reason not to extend marriage rights. I certainly won't argue that the typical gay lifestyle is not promiscuous -- men are more sexually aggressive than women, so when you cut out the latter, well, right. (As a corollary, lesbians tend to be more monogamous than heterosexuals.) But it seems rather silly to count this as an argument against gay marriage. The point of marriage, at least these days, is to promote monogamy. What interest does the government have in promoting gay monogamy? It establishes a couple as a part of the community, and thereby gives them a vested interest in that community. More pragmatically, there is also the issue of AIDS (though it's thankfully diminished). Furthermore, we still aren't entirely rid of the days when gay men felt pressured into loveless, heterosexual marriages. One of my childhood friends endured this sort of arrangement; I can safely say that it benefits no one. Any step toward a formal acceptance of homosexuality will benefit society as a whole.

Certainly, the government is not responsible for gay monogamy. All that I'm arguing is that there are real reasons for the government to promote it. This argument is, of course, not intended as a substitute for the "equal rights" argument, but rather as a supplement. The liberal case is obvious enough; but I don't understand why even a conservative would be against it, as it's ultimately a move toward conservative ideals. (And yes, I am also against no-fault divorces.)

P.S. Is it really a prevalent opinion here that gays only consider this a financial issue? I don't understand why anyone would draw that conclusion. Not to be overly dramatic, but do you think we're simply lying? Why?

Believes it will succeed: Probably correctly believes it has some small chance, but given the answer to the first two questions, it doesn't matter.

Bottom line, the FMA is a reasonable political (if constitutionally unwise) reaction to the gay rights activists' improper efforts to win through the courts what they cannot get through the political process.

Every time I hear someone argue that anyone opposed to gay marriage because of its effects on the family should really be worrying about divorce or "Vegas-style" marriages, I want to scream. The institution of the family needs all the help it can get. Divorce certainly harms the family, but how in the world does enacting one more destructive policy help the family?

Yo. Am I the only one who sees nothing but upside here for gay rights and gay marriage? Gay marriage advocates' chosen path -- litigation and the sympathy of bluehair judges -- almost always has the perverse effect of creating a popular BACKLASH and mobilizing (indeed, creating!) organized opposition where none existed before. Any doubters of this assertion should simply check out the history of reaction to Roe v. Wade.

And that's the road we were seeing here: judicial overreaching and the inevitable reaction (of the reactionary sort) to that overreaching. What Bush has done has required this debate to be played out in the open. Now every congressman and every State legislator is going to have to take a stand. And, since the text of the likely amendment seems to preclude gay marriage qua marriage, our legislators' choice will be stark: are you for gay marriage, or are you against it?

Where the debate before was about judicial authority and civil unions and equal protection and rather obscure legalisms like those, the issue now is marriage or no. And 50 state legislatures will have to deal with it. Watch the lobby groups form and the arguments on the MERITS of gay marriage begin. I have little doubt that a well-funded gay marriage lobby will win the day -- especially since the anti-gay marriage arguments I've heard so far are pretty pathetic. The Amendment will fail -- and the inevitable next step for the successful pro-gay marriage lobby will be to revisit the Legislatures that rejected the Amendment and ask them to go the whole nine yards and simply expand marriage rights in those States.

I'm serious. Bush's decision today will advance the rights of gay Americans beyond anything anyone is predicting. In 15 years, most States will allow gay marriage -- thanks, ironically, to George W. Bush.

Here's a question I've been asking supporters of gay "marriage" all day today:

Would you support the right of two straight guys to get married?

If not, why not? Wouldn't you be discriminating against them if you prevented them from getting married? And, more important, how could you tell? Should people be forced to take orientation tests before being eligible for marriage licenses?

I know you're asking the obvious question: why on earth would two straight guys get married? I think the answer is simple: fraud. Insurance fraud, immigration fraud, social security fraud, etc.

Crusadergirl, your question is a non sequiter. It wouldn't be fraud, after all, if same-sex marriage were legal. If same sex marriages were lawful (which they will be in 15 years in most states), then there would undoubtedly be some straight guys at the margins who get married for the purpose of (non-fraudulently) obtaining the legal benefits of marriage (and, incidentally, the legal burdens: the federal marriage penalty, community property laws, etc.) That is no different now than OPPOSITE sex couples who do not love each other, do not have sex, do not have children, and nevertheless marry for the same legal benefits. Do you propose to ban THAT? Your answer must be no, and therefore your argument fails.

Ben: While I agree with you to some extent (in that banning gay marriage and dealing with Vegas weddings are not mutually exclusive), their position isn't as rash as you make it seem. The issue is not whether one *can* do both; the issue is that the Religious Right has devoted a vastly disproportionate amount of resources to battling one (gay marriage) rather than the other (frivolous marriage, no-fault divorce, etc.). Second, I still haven't seen a coherent explanation of why gay marriage *would* be detrimental to the American family. To the contrary, for the reasons outlined in my post above, it seems to me that it would be beneficial. Conversely, the issues of frivolity have damaged marriage in a very real, documentable way -- and yet we don't hear a fraction as much about them as we do about gay marriage. If there is a movement to get rid of no-fault divorce, etc., it certainly isn't being given the kind of resources that the campaign against gay marriage is. This leads to the impression that the Religious Right is only willing to take a stand on these issues when it doesn't have to worry about alienating large portions of its constituency in the process.

CrusaderGirl: Indeed, if gay marriage were to become legal, two straight men could marry each other under false pretenses. It would be ridiculous to "orientation-test" marriage. However, I have a difficult time seeing why this would be an issue. If these two men were really so intent on fraud, why wouldn't they just find some like-minded women and avoid the stigma of homosexuality in the process? In other words, there's nothing preventing people from marrying fraudulently now; why should advocates of gay marriage have to provide a solution to be allowed entry?

Thank you, Appalled Moderate for pointing out the elephant in the room: since not all employers are willing to offer benefits to non-spouses, gay marriage is a legal way to FORCE them to do so.

And, as CrusaderGirl pointed out, there is zero way for anyone to determine if such a "marriage" is real or simply a con.

It's called "unintended consequences," and gay marriage has them in spades.

Oh, and a big thank-you to everyone blaming conservatives for not fixing marriage in general. Actually, we're doing the best we can, given we've been steamrollered for the past 40 years.

Honestly, it's like blaming Patton for the Soviet occupation of Belin. Um, he was overruled.

I believe many of the states that support DOMA or are adding it into their constitutions are ALSO creating stricter standards for divorce. I challenge you to find a single conservative who wouldn't jump at the chance to stop Britney's insta-marriages in their tracks.

The difference between us and the gay movement is we work through the democratic process, not the courts.

I'm going to explain this again, and see if anyone pays attention.

Marriage as it has been for the last 1,000 years or so has been about providing for children. Our entire system of family law assumes that a marriage will produce children. That is why the law is structured the way it is.

But laws only function when society supports them. When they don't, you get Prohibition-level problems.

So society came up with a set of rules and traditions to reinforce marriage, and one of them was that couples seeking to cohabitate should first marry. Now it often chanced that these marriages were childless, not the least because they were past childbearing age.

Yet so strong was the idea that people cohabitating should marry, that this tradition became ingrained. A "ruined" woman was one who gave her "virtue" without the bonds of marriage, and the ultimate disgrace was a child born out of wedlock.

So now we're in a situation where those mores are largely gone: more and more children are born in broken homes. Men treat children as an inconvenience. Fatherhood is a joke.

What we should be doing is hammering home the message that children should ONLY be concieved in marriage, not that it's a set of benefits and tax bonuses that anyone can get.

Like it or not, George W. Bush has been entirely consistent on this. Anyone remember his Marriage Initiative? He understands what reams of research is showing: children from married parents have the best prospects in life. Turning marriage into just one more tax shelter isn't going to do it any favors.

Indeed, if taxes and benefits are your problem, change THOSE laws. Do you hate the inheritance tax? SO DO WE.

Think taxes are too high? SO DO WE.

Of course, I don't think you'd get the same moral currency by COMPELLING all employers to give out benefits to same-sex couples. It's too transparently greedy.

So you dig up the civil rights struggle, conjure up images of gays being attacked on the Mobile bridge by dogs all because two yuppies who like each other a lot have to pay higher tax.

But if marriage isn't about children, if it isn't about tradition, if its just a set of benefits, why can't three people marry? Or four? Or close relatives? Are their rights not as important?

I'm still waiting for Andrew Sullivan or even Daniel here to clear this up for me.

I mean, how many husbands have mistresses? How many wives have lovers? Wouldn't it be more FAIR if they could all share the same benefits package, not to mention tax bracket?

That's the road we're riding down. Either marriage is just a tax break or it means something more. Once you decide some parts of it are open to negotiation, the whole thing is open to revision. And frankly, I don't think we want to go there.

Oh, and gay marriage means gay divorce. It will happen. Of course, our laws aren't set up to deal with that. I mean, how do you "consummate" a gay marriage?

Perhaps they read the legislative history behind the 14th amendment, which as far as I can determine says nothing about marriage or homosexuality. Perhaps what these conservatives appear to hate is merely the abuse of the Constitution to circumvent the democratic process.

Yes, Bush believes that an amendment is needed to preserve marriage as being between a man and a woman. From what I have heard from friends who are more than a little bit involved in the BC04 operations, they are not really sure how this is going to cut. The most obvious gains would be in the "Red" states that Bush is pretty much a lock to carry. They say that they do not know how this is going to cut in close Red states like, say New Hampshire, where a lot of Bush voters in 2000 define themselves more as libertarians than conservatives or loyal Republicans, nor do they think this is going to help them at all in some of the close "Blue" states like Minnesota, which they felt was trending Republican and where they thank there is a fairly significant moderate swing vote. I am told that as you move up the chain to the higher level gurus, no one thinks this is going to win the election for Bush, most think it will wash out as neutral, and a few think they could lose the election over it if the economy does not significantly improve. I am also told that, with the Massachusetts ruling, the pressure from the base was becoming inexorable, and that they felt that not endorsing the amendment was definitely going to hurt them. Thus, they made a tough call and came down on the side that you would expect, the one less likely to hurt them. In other words, this is about typical for every campaign, which has to make at least one high stakes decision that could cut either way, but which they can't kick down the road. Dan Drezner may have some sources that he could cross check this with; what I have said comes from three different people, some of whom differ a little bit on their analysis, but none of whom would strongly disagree that what I have written is a fair summary.

I think he believes it, but probably doesn't really care all that much. I think Rove probably championed this.

I don't see why everyone thinks it has such a small chance. In the Congress, it's gonna get virtually all the Republicans and hella Democrats to vote for it. And I can definately see 38 states going for it.

Also, I don't see how anyone believes that this is not a huge winner for Bush politically. The key states are Florida, Ohio, and Pennsylvania. This is going to kill Kerry in those states. Enh, Kerry was going to lose anyway.

BTW, after reading about the Massachusetts decision... it appears that the justices apparently had no real choice but to rule as they did, according to the Massachusetts Constitution. They could have said Well, the law says such-and-such, but that's political dynamite so we'll just ignore the law... the majority chose not to do that. It's not that justices just made something up.

posted by: voice of the democracies on 02.24.04 at 03:27 PM [permalink]

I certainly won't claim to be Andrew Sullivan, but the difference between gay marriage and polygamy seems pretty obvious to me. Gay marriage, in spite of your bewildering assertion that it's based in greed, is ultimately founded on the same principle as straight marriage: two people marrying each other out of attraction to one another. Will this always be the case? No. Some people may indeed marry fraudulently. But there is no basis for suggesting that gay marriage will facilitate this any more than straight marriage. Indeed, people already marry fraudulently; both in San Francisco and in Vegas.

As was pointed out earlier, polygamy has no such clarity. It is inextricably tied to a number of ugly issues. Polygamous relationships are often abusive -- if not physically, then certainly emotionally. Finally, polygamy *does* very obviously create unprecedented risks for fraud. Gay marriage, again, is mechanically identical to straight marriage in this aspect; the fact that it's restricted to two people makes it much less subject to exploitation than an arrangement allowing five, six, or twelve people. Why don't these distinctions suffice?

President Bush just validated Democratic criticism of his character. Pandering and lack of moral courage are now bipartisan.

California politics has an axiom that it is important to define your opponent's image before he does. The Democrats have for some time been trying that on Bush with limited and likely likely ephemeral success.

Not any more. Bush just did it to himself. He has confirmed bigtime the Democratic charge that he's a divider, not a uniter. It doesn't matter how popular the political position at issue is, what counts most in Presidential elections is character and Bush has just given up any claim to superiority there.

So if both he and Kerry pander, and both take positions for political expediency, which of them has demonstrated greater physical courage?

Bush will still win, but Kerry will do better than I expected, and the down-ticket effects will be more than that.

Bush has just lost the libertarians for himself, and for the GOP. For a very long time.

Women know all too well that discrimination against, and harassment of, homosexuals means the same for women. As an example, military women who refuse male advances are accused of being lesbians and their careers torpedoed.

Women know that it isn't their interests men have in mind when talking about protecting marriage and family. Especially Republican males.

Daniel Merriman is absolutely right both as far as the proximate cause and the likely political impact of Bush's announcement today. The only thing I would add is that it appears a consensus has not formed among amendment supporters as to its precise wording; this could lead to significant discussions within the administration and on the Hill before the amendment ever comes to a vote.

I think you hit it on the head. If anyone understands the role of government esspecial comparred to the role of religion (read my blog for an interestin post) they will realize this proposed ammendment is absurd. He's pandering to the Religious Right and hardcore Conservatives he has neglected recently

Zathras writes: "Perhaps they read the legislative history behind the 14th amendment, which as far as I can determine says nothing about marriage or homosexuality. Perhaps what these conservatives appear to hate is merely the abuse of the Constitution to circumvent the democratic process."

True enough, the 14th amendment contains neither the words "marriage" nor "homosexuality". But it does contain that pesky word "equal". Sticks in some people's craw, I guess. I think it would be forthright of them simply to repeal it if they dislike it so much.

By the way, I presume from the above that Zathras believes that Loving v. Virginia was wrongly decided. Since the word "education" is also not found in the 14th amendment, then I guess Brown v. Board of Education was also wrongly decided.

Folks, let's grope for a grip here. First of all, Bush clearly and in so many words said he ws for a"marriage amendment" that permitted civil unions. Now, God knows how you're going to make it work -- two forms? Or one form that says "(blank) License" and you fill in the blank? -- but the one thing that's clear is that he's not supporting the Musgrave language ("marriage or the incidents thereof".)

Once he's down for "no gay marriage, but civil unions", though, his position is nearly indistinguishable from Kerry's -- and somewhat more liberal than Edwards, who doesn't want an amendment but also is against North Carolina establishing civil unions.

Now, add to that the fact that, as President, he's about as far from having an influence on a constitutional amendment as anyone could be: he doesn't have a vote, he doesn't sign the resolution, and there's a thoroughly (and properly!) difficult process to get it through and done.

With all that said, no, I don't think an FMA is a good idea: the Constitution doesn't say anything about marriage now, and I think marriage ought to be left to those other unenumerated rights lah-de-dah. But don't get up on your high horses about evil Bush, because his position isn't any different from the rest of the viable candidates.

zathras writes: " The only thing I would add is that it appears a consensus has not formed among amendment supporters as to its precise wording; this could lead to significant discussions within the administration and on the Hill before the amendment ever comes to a vote."

We have to watch them on that.

If the wording is allowed to change, they're liable to insert a an utterly unrelated clause outsourcing all government operations to Halliburton.

For those such as Peter who decry the likelyhood of a slippery slope towards legal polygamy, are the "civil rights" of bisexuals to be denied?
Once the fundamental basis of marriage is altered, what restrictions could stand against the rationale of the Massachusetts Supreme Court?

“Marriage as it has been for the last 1,000 years or so has been about providing for children. Our entire system of family law assumes that a marriage will produce children. That is why the law is structured the way it is.”

Sorry Alex – this is not correct. Providing for children was not the goal of marriage until very recently. Marriage, over the centuries, has been about property i.e.; that a property owner (male) could assure that his property at his death passed to his biological descendants and he could have some certainty that they were his biological descendants. Most marriages were arranged, and dowry’s were an important part of the arrangement. Marital property rights law does not necessarily assume children, and inheritance law does differentiate between the rights of a spouse, the rights of a decedent’s children that are by that spouse, and the rights of a decedent’s children not by that spouse.

“I mean, how many husbands have mistresses? How many wives have lovers? Wouldn't it be more FAIR if they could all share the same benefits package, not to mention tax bracket?”

Marriage tied to romantic love or commitment is a relatively recent phenomenon, and children born outside of marriage have been discriminated against for centuries. This statement assumes that any sexual relationship rises to the level of marriage – and that has never been the case.
As marriage has always been a social institution tied to property, what is inherently wrong with the state changing those property rights by recognizing gay unions?

It strikes me that using a constitutional amendment to deal with gay marriage is taking a sledgehammer to kill a fly. Wouldn't it make more sense to simply say publicly and often that the street theater now playing out in San Fran is simply that, a publicity stunt ? After all, it's very clear that the CA Constitution defines marriage as between a man and a woman. Newsom has as much authority to change that as I have to print out dollar bills on my Lexmark and call them legal tender.

It seems that a better way of handling the situation would have been to call his bluff and say that he can issue all the licenses he wants, they simply won't be recognized: tough luck, and move on from there. People claiming incidents of marriage under these licenses would be denied, and the question of gay marriage would again be where it belongs - in the public sphere, subject to debate, regulation and, if the support is there, legalisation.

fingerowner, the California constitution includes no such language. There was only a referendum to that effect. Newsom can reasonably argue that equal protection requires him to allow gay marriage.

It should be noted that most of the proposed versions of the amendment are arguably not consistent with civil unions and inarguably designed to be at best unclear on the question. And from what I've read, it would be most difficult to set up civil unions in a way that wouldn't be separate and unequal.

A question about if the amendment passes: what would be the definition of "man" and "woman?" For example, would a genetic male who has had complete gender reassignment surgery (including genitlia, hormones, etc.) and for all intents and purposes considers herself to be a woman be able to marry a genetic female (sounds kind of like same-sex marriage)? Or, would this genetic male now be considered a woman (since that is how the person view herself and lives her life) and then have to marry a genetic male? The whole issue gets even more confusing when you include people who are born with ambiguous genitalia. Can they marry either sex? If this amendment passes, are we going to start genital examinations before people can get married to prove that one partner is really a man and one is really a woman? Just curious.

"A question about if the amendment passes: what would be the definition of "man" and "woman?" For example, would a genetic male who has had complete gender reassignment surgery (including genitlia, hormones, etc.) and for all intents and purposes considers herself to be a woman be able to marry a genetic female (sounds kind of like same-sex marriage)?"

This is an excellent point. My wife is a psychologist who does therapy for transgendered individuals, who in our state are legally the gender they have changed to after sex reassignment surgery.
(Google : Transgender surgery)

Jon H and Rilkefan - my bad on the CA constitution - it's what comes of skimming articles on the subject instead of reading them. Thanks for the pointers.

I would, however, be careful about arguing that something is "merely" a law. In this case, "merely" codifies pretty much universal practice up until (apparently) a few weeks ago. And at the risk of blundering again, my guess is that Family Code Section 300 (?) was passed by appropriate majorities in the legislature and was duly signed into law by the governor. A court's got to have some VERY good reasons to overturn it. If the definition of marriage under CA law was/is so clearly unconstitutional, things would have been worked out already.

"This is an excellent point. My wife is a psychologist who does therapy for transgendered individuals, who in our state are legally the gender they have changed to after sex reassignment surgery."

If this is the case in some states (and I'm pretty sure TexasToast is right -- I think courts have come to different conclusions on this), it strikes me as highly ironic. The state is basically telling two gay men in a committed relationship who wish to marry, "Sorry. We can't give you a marriage license now. BUT -- if one of you has tons of physical surgery and you come back, THEN you can get a marriage license." That strikes me as completely illogical and frankly absurd. No matter how much surgery or hormone therapy (or whatever) that you've had, in my view, when it comes down to it you're still basically the same person. So why not just let these two people marry *before* one undergoes surgery? And also -- why is any of this the government's business in the first place?

President Bush is giving his hard Right supporters a latter day Equal Rights Amendment. There will be lots and lots of tearing of hair and wearing of sackcloth and in the end, it won't matter. I will say one thing as a 50 year old gay man: All my life I've seen straight people arguing about and making decisions about how I'm supposed to live in this society. Both sides should remember that even a Pawn can become a Queen with enough luck and skill. The issue is on the board now and that's the best thing that could happen politically.

About Crusadergirl's claim that allowing gay marraige might result in straight guy's getting married with the intention of carrying out "fraud" - I predict within five years such a scenerio will be the plot of an extremely bad Hollywood comedy. It'll probably star Adam Sandler and Jimmy Kimel as the two imposters. And of course, a monkey wrench will be tossed into the plan when one of the guys falls in love with a lady. Let's say she's played by Tara Reid. I also predict this movie will not be Oscar material. Oh, and this movie might possibly have one or two jokes about gays that would have been deemed offensive in 1986, to say nothing of 2006.

Oh, and for the record, I support gay marraige, though I admit such as this will be an minor (very minor) unintended consequence of all this. But that's okay - The Onion AV Club's "Films That Time Forgot" feature will have another stupid movie to make fun of circa 2028.

Oh, please. A healthy dose of cynicism is in order here. The amendment will never pass. Bush knows it and is simply taking advantage of a fine opportunity to throw his restive right wing some red meat. The press knows it, too, but is pretending to take him at face value because they think it makes him look like an idiot. Classic codependent political theater, signifying nothing.

Social-issue amendments never pass. The last was Prohibition, a long lifetime ago. Americans are smart about the Constitution: They'll agree to procedural and representational reforms, but they draw the line at codifying social policy. Thus it has (almost always) ever been, thus it shall be. On to the next phony issue.

Probably everyone who wants to couple-up under a contract should be allowed to do it. Why the contract can't be a marriage contract for heterosexuals and a contract of civil union for homosexuals is a mystery to me. Each kind of contract could be made functionally equal by Federal law.

Why gays cannot accept or respect the uniqueness and special meaning many heterosexual-marrieds appear to experience by being a part of this group might need to be answered. This sense of group need not have anything to do with homophobia, until, that is, gays try to destroy the group.

It appears from my point of view that homosexuals want to coapt or glom onto the sanctity or uniqueness of meaning already thought to be present in the hetero "marriage".

Why don't homosexuals want to establish meaning attatched to their own group as classified by sexual preference in this case? This would be more healthy.

Or it appears that gays want to dissolve the heterosexual-married group and its meaning because they just don't like this kind of contrast, or are jealous of the meaning. This seems pathologic if not intendedly heterocidal to the group of heterosexual-marrieds.

Holding the gay marriage struggle more holy than upholding the law was self-contradictory and a big mistake. This issue is not analagous, IMHO, to the situation in either the Civil Rights or Woman's suffrage movement, if for no other reason that in these cases, no alternative could exsist to the actual resolution.

It does seem, therefore, that either gays must be allowed to marry or an equal alternative mandated as a Law of the Land.

Again, why should gays object to the latter?

In the immortal words of Sitting Bull: "It is not necessary for eagles to be crows."

The gay marriage movement has been making steady headway for the past several decades...

Hey, I'm old enough to remember the '70s and '80s, when gay activists and other children of the Sexual Revolution belittled marriage as "just a piece of paper," and ridiculed the idea of one sex partner for life. The gay marriage concept is younger than MTV.

Bush just did it to himself. He has confirmed bigtime the Democratic charge that he's a divider, not a uniter.

I am living in the Netherlands. Here we have gay marriage for some years now. Not religious marriages of course, but civil (government-approved) marriages.

The interesting thing here is that no one nowadays seems to be offended by it. As far as i can tell, most people see marriage as something private, between two people. The government is only involved for the official registration.

So i wonder, what are the arguments against civil marriage between two people of the same sex?

"The problem for Bush now is that he may lose the swing voters who want a vigilant pursuit of the war on terrorism, are fiscally conservative, but socially liberal.

He gains nothing from his base, who would already vote for him over Kerry.

Bad political move."

This is my read of the situation as well - this is why I think that those who declare that Bush is doing this for "political gain" are out of their minds, just like those who though Bush went to war in Iraq for political gain. I completely disagree with Bush on gay marriage and fall into the category of a Bush supporter who is alienated by his profligate spending and religious crap like this, but I do admire his conviction and resolve in the face of considerable opposition.

I think Bush is sincere. I think he really does believe that gay marriage somehow diminishes the privileged status of marriage as a bulwark of civil society. I know Bush-haters will find it hard to believe, but there it is.

For what it is worth, I support the rights of gays to marry, and indeed support the right of any individual adult (important qualification) to make whatever binding contracts with others they so choose, with the proviso that they are not entitled to any benefits paid for by their fellow taxpayers.

In fact 99 pct of the heat of this issue would vanish if the Welfare State were abolished. Let's face it, one of the reasons why marriage is such a political issue is because so much of modern government impinges upon it. As classical liberals like Hayek and Friedman would argue, the State should get out of the bedroom as fast as it should get out of the office.

As a straight, unmarried young woman, I support the poster upthread who wrote:

"Women know that it isn't their interests men have in mind when talking about protecting marriage and family. Especially Republican males."

Along with gays, women will very likely remember this (silly and cynical) policy stance for a number of years.

And I also support the poster who urged people to stop advocating the repeal of no-fault divorce. Do you think that would really help matters? This is a liberal rhetorical move that has been repeated about a hundred too many times.

As for all of the doom-sayers of the left, I suggest that they educate themselves about European civil unions in order to see how inaccurate their slippery-slope logic is. Look up France's PACS (a civil union arrangement), for starters...

"So i wonder, what are the arguments against civil marriage between two people of the same sex?" Harmaen Breedeveld

Here's one attempt: the evolution of the human race has apparently been dependent upon heterosexuality, which has been such a powerful force or necessity that humans of radically different structure and chemistry have evolved, the male and female. For this simple fact of Nature to be codified into "marriage", leaving any other bonds between people to something else, acknowledges the relationship of the human race to the Universe and thus is a statement of its own self-knowledge.

"Marriage" is an evolutional reality, not a homophobic reaction. [Though it could be part both in individual cases.]

A trend seems brewing in this thread; Blame religion and it's teachings for the movement for this amendment.

One point that seems to be going missing here is the role of culture, of which religion is only a part.

I've pointed out here in the past that only around 50% of Americans consider themselves religious. Yet the polls seem to suggest numbers of people against "gay marriage" to be around 75-80% in some polls and never below 70%.

Seems clear there's more than just religion at work here.

By the same token, however, there's more than mere law at work here, as well. Consider; if we read the constitution the way the four idiots in Mass. did, there's no legal reason to keep a man from marrying his daughter, or his son, for that matter. We've not seen any challanges along this line yet, but we know it'd be coming should this ruling stand. Further, we've already seen challanges to anti-poligamy statutes, based on grounds not all that dissimilar to the case brought in Mass.

And finally, it should be noted that the Mass case was, in fact activist judges.. one of which called marriage a 'stain on our legal system, which needs to be eradicated'.

Offhand, I'd say this is not an unbiased ruling, would you?

Finally, a question: Does government....(not just the American government, I'm speaking of government as a basic idea)....Does government have a proper role in protecting the culture?

For people who say the "lawless" actions of Mayor Newsom forced the President's hand, what makes you think enshrining a gay marriage ban in the Constitution would make people less likely to continue such "lawless" action? Remember Prohibition? Did that stop people from drinking? Did that stop cities like New York and Chicago from essentially declaring that they wouldn't enforce Prohibition? No. The actions of Gavin Newsom can be dealth with in California. Just as Massachusetts can deal with what its state court said.

I've always used the expression "tough row to hoe," but know that I've come across "a tough road to ho", I think I'll start throwing that one out there and see if anyone catches it.

Swing voters - they don't care about this issue. What it does is get the radicals on the other side energized. Swing voters don't like energized radicals. Republican convention could be a mess outside in the streets and I think that favors Bush. Swing voters aren't going to like unrest.

First off, anyone who thinks they can predict what will happen, or what different groups believe on this issue is dead wrong. Has anyone asked around in their circle of friends and family? I have. And the result is a chaotic mess. Religion, educational attainments, age, class, race, even sexual orientation are NOT, I repeat NOT reliable indicators of opinion. This issue is a total Wild Card. It's a bit scary, and I think Bush knows it.

Secondly, to the poster above who argued that thousands of years of western marriage law was NOT about children, it was about inheritance rights--hello? no children, no inheritance problems. This is like southerners saying the Civil War was not about slavery, it was about states' rights (yeah, states' rights to protect the institution of slavery--big dif).

Which brings me to my own objection to gay marriage: the state, and society at large, have NO compelling interest in regulating relationships between two people who cannot procreate. They have every right to lead their lives as they see fit. And I have every right to ignore it. I need not endorse their lifestyle, I need not even acknowledge it. It doesn't bother me at all. I just don't see why I should care.

Where children are adopted or born to same-sex couples, there the civil contracts others have endorsed here seem perfectly adequate. Family courts and divorce lawyers will still need to address (probably already are addressing) case law with regards to property and custodial rights when these unions dissolve. Hey, why should straight couples have ALL the fun?

The argument against same-sex marriage is best summed up by the semantic dilemma it poses: not only is "marriage" now redefined, but we'll have to come up with new, gender-neutral words for "wife" and "husband." Hey, if I wanted to call my husband my "partner" forever, I wouldn't have gone throught the trouble of marrying him. And what of "father" and "mother" and all the verbs and adverbs they spin off? I'm not saying this is WHY it shouldn't happen, but it is an indication of how revolutionary--not in a good way--the idea is.

Kelli writes: "The argument against same-sex marriage is best summed up by the semantic dilemma it poses: not only is "marriage" now redefined, but we'll have to come up with new, gender-neutral words for "wife" and "husband.""

You won't have to, and the people getting same-sex marriages will just use the words they're comfortable with.

Hispanic people are allowed to marry in America, and you're not required to use Spanish terminology, are you? Thai people are allowed to be married and you're not required to use Thai terminology. Sheesh. Get a grip. Your life isn't going to change.

And one more thing (especially since Andrew Sullivan--for all the money his readers have given him--has not extended the courtesy of a comments section) I really have to question the wisdom of "libertarian" gays and gay-rights supporters seeking an extension of the state's reach into their personal lives. There is a lot of talk of the positive aspects of marriage (nothing wrong with that!) but little discussion of what how the state intervenes when things go wrong in a marriage. Years ago, a college acquaintance had a "union" ceremony in Provincetown (nothing legally binding, of course). Shortly thereafter, the couple split up and her "partner" successfully sued this quite wealthy heiress for a settlement in the 6-figure range. My old classmate was, reportedly, shocked that she could be hit so hard. Well, all I can say is, get used to it.

Bob;Well, this is really the basic difference between conservatism and libertarianism, isn't it?

Well, it's a bit more basic than this, even.

I have always held that politics,and government are (in their best and and original use) a tool toward the end of giving the existing dominant culture a mechanism in which to work it's collective will. Stated differently, the primary purpose of any government that wants to survive for long, is to support the culture that gave it life.

Think; Was culture and invention of government, or was government an invention of culture? Clearly, the latter. If so, then it follows that culture raised up government for the above stated purpose.. as a mechenism to support the culture. Thereby, I submit that supporting the culture is a valid role for government.

Now, I certainly admit, in fact I'll loudly point out, that this original goal/purpose of government goal can be and is preverted by using the power of government toward other goals. Hitler is an example of this, as are Soviets and American liberals.

All of these use(d) government not to reinforce the culture as was the original purpose of government, but by means of government might, changing the existing culture.

Such governmentally imposed changes never last long. The governments collapse, else the government *and* the culture collapses. Either way, the government that does not fufil it's primary purpose doesn't long survive.

What needs to be guaraded against then, in our case, is that the government not be used against the dominant culture, and it's values, lest we cease to exist as a culture, and as a people, as so many cultures have done before us, at the hands of governments who were supposed to uphold them. I submit that has been occurring all too often in the last 60 years or so, here in the US.... and that applies rather well to this case in Mass, and to the SF situation, as well.

I know folks may be a little uncomfortable with that, but please consider;

If our legal and moral rights, as I suggest, decend from the culture, and it's values, it's morality, then what guarantee of our rights do
we have, if that culture ceases to exist, by means of either government fiat, or inattention?

This is, it seems to me what those who use the power of government in an attempt to alter the values of the culture, as in this case, do not reckon with. Libertarians also seem to fail to reckon with this point.

Or, perhaps some of them do, and those rights disappearing is a goal for them. There's a lot of evidence for the latter. (Such as for example, the Judge in the mass case suggesting that Marrige needed to be destroyed as an institution.)

There are lots of different reasons people may want to get married: loneliness, financial reasons, love. Children may or may ensue from such unions. People may or may not want children.

My point is simply this: if a couple has no children, it doesn't matter one bit to me whether they stay together forever, are happy, miserable, whatever. The minute they have children, however, I have a stake in their union (however small) because I have to live in a world with their child(ren). If their child is hungry, I have an obligation to help feed it; neglected or abused, to set him/her up in a more loving environment. I will help educate him/her, and if all else fails, pay for the jail in which he/she ends up.

We no longer live in a world where anyone gets married because they cannot work to support themself. Thus, we need not worry about marriages without issue breaking up. It is, in fact, all about the children.

As for Jon H., I recommend you pick up a copy of Diane Ravitch's excellent book, "The Language Police." In it you will see the power of language to shape thought, and of the thought-police to change the language in which our children are educated. Then get back to me and we can discuss how this little social revolution isn't going to impact me or my family.

Peter writes: "Gay marriage, in spite of your bewildering assertion that it's based in greed, is ultimately founded on the same principle as straight marriage: two people marrying each other out of attraction to one another."

Peter advocates a change in the definition of marriage from a union between a man and woman to a union between two adults. He then downplays a question about why it shouldn't then apply to all contracts between consenting adults. The leap from a union between a man and woman appears to me to be a much bigger step than from two people to three people.

Alec wrote: "Do you hate the inheritance tax?"

Alec, I cannot for the life of me figure out what taxing totally unearned income of heirs has to do with the question of state blessing of same sex unions. As a fiscal moderate/libertarian, I also cannot think of any tax that I support more than the inheritance tax. If we are going to have to force liquidation of assets to pay taxes at any point, the death of the only person who can lay claim to having earned it seems like the perfect time to me.

Restricting intergenerational transfers of unearned wealth also seems like an awfully good idea too. The negative economic and political impacts of wealth concentration is pretty well documented. Restrictively taxing unearned wealth transfers instead of restricting anybody's ability to generate wealth on their own sounds like a perfectly rational solution. Who are WE anyhow? WE are trying to protect everybody's liberty aren't WE?

Bush's hand was forced by the Lawrence case, the Massachusetts case and the carnival in California.

The Lawrence case will result in the DOMA being ruled unconstitutional (note that Sen. Kerry voted against DOMA because he thought it was unconstitutional). The FF&C allows states to refuse to recognize legal acts of other states on public policy grounds - but if the public policy is irrational and bigoted, as the Massachusetts Supreme Court and the Lawrence court have held laws upholding traditional views of sexual morality to be, then the public policy exception is invalid. Indeed, a number of gay rights groups have announced plans to seek the invalidation of the DOMA on just these grounds.

There are two conceptions of marriage at issue here. One sees marriage as concerned with individual happiness. If that is its purpose, then indeed there is no rational reason to limit it to couplings of men and women, indeed, there is no reason not to extend it to whatever grouping makes people happy, gay, straight, polyandrous, polygamous, incestuous, whatever. Four of the seven members of the Massachusetts Supreme Court apparently subscribe to this view.

The other conception of marriage sees it as a social institution created for the purpose of promoting the procreation and rearing of children. It is only because marriage as an institution benefits society by producing well-raised children that society confers on married couples substantial legal and social benefits. The happiness of the individuals involved is incidental - and for much of recorded history, when marriages were arranged by parents or other authorities, not viewed as particularly relevant. While it is true that many marriages fail, and the children are then deprived of having both a father and mother, and it is also true that some marriages are childless, it is difficult to see how society would benefit by extending the institution to couples who do not even have the potential or purpose to create ideal families.

DBL writes: "While it is true that many marriages fail, and the children are then deprived of having both a father and mother, and it is also true that some marriages are childless, it is difficult to see how society would benefit by extending the institution to couples who do not even have the potential or purpose to create ideal families."

In the end all of this talk of gay marriage results from an addiction to a certain understanding of equality. Gays, perhaps because they have been treated shabbily, perhaps for other reasons, just want to be like everyone else. But you know what? They're not. That doesn't mean they're bad people. Look at myself: I do not qualify for the Olympic Games. Why? Because I'm not a good enough athlete. Tough luck for me. But surely we're not going to alter the rules to allow me to participate in the Olympic Games? Doing so would ruin the institution of the Olympics and serve me no real purpose, as I would never participate in the ACTUAL Olympic Games - you know, the one with good athletes. Leftist obsession with self-esteem rather than with performance blinds them to this. Similarly, gays will never be equal to heterosexuals, just like apples will never be oranges. And that's just fine. Apples and oranges are both good and nice, enriching our lives through their difference. Olympic athletes and I are both contributing to society, in different ways.

All of this gay marriage nonsense marks a flip-flop on the left from emphasis on diversity to emphasis on equality. But we have to choose between those two goals: they conflict. Self-esteem is not the same as performance. Promoting self-esteem harms performance. Making leftist gays feel better (self-esteem) by endorsing their latest preference for equality rather than their previous preference for diversity is not going to alter the fact that their relationships will always, *by definition*, be different from heterosexual marriage. Never an apple became an orange. And never the supposedly ugly duckling became a duck. But what a beautiful swan!

If I may just add an historical note, here. When people on the right call marriage a bullwark of our society, many on the left roll their eyes involuntarily. This is a mistake. The institution that underpins every society on earth is marriage--western marriage happens to have evolved in a way almost uniquely inclined to allow for individual choice, and that choice is the basis of the individual rights we enjoy today (rights that have, ironically, brought us to the verge of declaring marriage "old-fashioned" and out of date, at least as it stands).

Compare western marriage to other models. In western marriage, the conjugal couple is the center of a new family, tied to a larger network of kin, but forming a distinct unit (check the bible, folks--a man shall leave his family and take a wife, yada yada yada). Since the middle ages, at the very least, most couples have had the right to choose their spouse freely, even over the objection of family (defense cites Romeo and Juliet). Where else in the world have conjugal love and personal choice been elevated to this status? Nowhere. Ask someone from India, China, Saudi Arabia. Just a few years ago, living in India, I was astounded at the rarity of "love matches", with most people I met telling me they would not dream of undertaking such a decision on their own.

Mess with this institution at your peril. It is far from perfect, but it has given us the bedrock of the freedoms we cherish. If you open the door to reinterpreting it, other challenges will be mounted. And we, as a society, will have no choice but to endorse them too.

Kelli writes: "The argument against same-sex marriage is best summed up by the semantic dilemma it poses: not only is "marriage" now redefined, but we'll have to come up with new, gender-neutral words for "wife" and "husband.""

Just out of curiosity, is the City of San Fran requiring blood tests as part of the marriage license procedure? Or is this considered a violation of the couples' privacy? If hetero couples are required to do it, as they are in many states -- my wife and I were required to do so -- are gays required to as well. I mean, if we're talking equal rights and all...

Mess with this institution at your peril. It is far from perfect, but it has given us the bedrock of the freedoms we cherish. If you open the door to reinterpreting it, other challenges will be mounted. And we, as a society, will have no choice but to endorse them too.

The current "Western" institution of marriage has not existed for "thousands of years". There was a fascinating post upthread on the subject by Carolina.

"Actually, marriage, as commonly defined in the united states, became popular in Western Europe in about the 7th Century when the Catholic Church started to make it a set of legal obligations between two people and Christ to hel[p] settle....

Property disputes.

I'm serious. Go look it up. I think it was the guy before Pope Gregory who had enough of this living in sin stuff, and was tired of dealing with inheritance suits. He also codified the concept of bastardization and sex out of wedlock as "sin". Previously the Church's adherence to the older Roman/Greek/Jewish forms of matrimony weren't appreciated by the Gauls, Celts, and Anglo-saxons who had their own, older traditions ..."

DBL,

Your phrase, "... it is difficult to see how society would benefit by extending the institution to couples who do not even have the potential or purpose to create ideal families" did not go unnoticed.

"ideal" families?

I come from a line of quite patriarchal German Baptists (Amish, Brethren, German Baptists, German Baptist Brethen, German Quakers, Mennonites, etc.). American Baptists are puling infants in the certainty department compared to non-Baptist Germans, and the absolute top of the food chain in the "strong & certain" category are _German_ Baptists.

Family values and lots of kinder define us. The urge to reproduce and raise families is dominant. As examples,

My cousin Gayle is gay. She had a boy by artificial insemination 15 years ago, and raised him with her partner of 25 years standing. He's a fine young man - Gayle has done well, and serves as a role model for one of mine. One of my identical twin sons is gay and plans on adopting & raising children when he has formed a stable relationship.

As a California litigator with 27 years experience, I assure you that the law has long gone past the concept of children being limited to man & wife, two-parent families. The legal system has had to step in to protect children because real people ignore your concept of "ideal families" in bearing and rearing children. We'll happily let caring, competent parents of any sort raise children given what we have to deal with.

It seems to me unethical and anti-American for the state to discriminate against gay persons as to marital property rights. Thus I support a state recognition of gay unions for these purposes. On the other hand, it is undeniable that recognition of this sort is not all that the gay community seeks. They seek recognition, acceptance and even celebration by the broader culture of their lifestyle choice and there is no denying that Kelli and Bithead are correct that a recognition by the state for property rights purposes goes a long way to attaining this end.

Civilization has survived for 6,000 years without instituting gay marriage. Why is Bush being lambasted for staying in tune with that kind of history? Let's face it, regardless of what your co-workers say on lunch break it would be extremely radical for Bush to support gay marriage.

And, what's with this "tu quoque" argument. Who cares if a few heterosexual families are not doing their job? What's that have to do with homosexuals? That's no reason to give them license to be legally married. So there's some irresponsible heterosexuals. Let's license them to get married? I'm sure homosexual couples can compete with heterosexual couples in many other areas as well. Let's roll back 6,000 years of history because of it?

A society does not have to be strictly logical. It does not have to accept incest or polygamy, because it accepts gay marriage. You can always elect to stop sliding down the slippery slope.

I actaully share a lot of your same concern about the institution of marriage and its place in our society. And that leads me to a conclusion that is pretty much the direct opposite of yours.

The reality is this. There are gay people. Their culture exists; they have relationships; they have them openly; in many cases, the relationships look a lot like marriage. It is natural to assume that gay folk will want an institution like marriage. Marriage confers recognition, certain rights and expectations and obligations that couples seek when they expect their relationship to be permanent.

If gays are not permitted to marry,they will seek alternative structures. (Civil unions.) These will probably be similar to marriage, but not exactly like them. How to recognize these will present a problem. Disparate treatment will cause strains. there will be ugly battles over the money -- with no clear rules -- when one of these things breaks up. And the gay community, without the same social structures that govern the rest of us, will continue to separate itself. That's not terribly good for society.

Finally, once a separate "civil union" path is established, with maybe less lenient rules on property settlements, different rules regarding tax treatment, adoptions, divorces, alimony, adopted child support, we'll have the straights who maybe fear the forever after part of marriage, wanting to sign up. And won't that be great for the marriage institution?

Kelli, you worry about messing with the institution of marriage. But by encouraging the development of a legally recognized alternative to marriage, you are putting more stress on the institution than you would be simply opening up the tent.

" Secondly, to the poster above who argued that thousands of years of western marriage law was NOT about children, it was about inheritance rights--hello? no children, no inheritance problems. This is like southerners saying the Civil War was not about slavery, it was about states' rights (yeah, states' rights to protect the institution of slavery--big dif)."

The point of my post was that marriage differentiated between children for inheritance rights purposes – it was not an institution designed to create children, it was an institution designed to determine which children were heirs. Therefore, its import was property rights, not the celebration of heterosexual commitment. Your analogy is misplaced.

I live and San Francisco and will attend a gay marriage (a family friend) this Friday. As someone who is heterosexual and very happily married (with a new baby) I just don't see how this homosexual union is threatening. So why deny the rights of a whole class of citizens, and why inscribe that restriction into the Constitution?

If you don't like gay marriage, ignore it. Because if it doesn't hurt you, it is none of your business (regardless of what the polls say).

(By the way, just to defy cliché political categorizations, I am also against affirmative action, for low taxes and controlling federal spending, and very much for the War on Terror, including the Iraq War.)

Oh Carolina, one who is the "breadwinner in her family, who fears no man's worldly impulses"

Nice comeback: "Oh, and I hate to tell you this, but "Marriage is a mechanism to protect women and children from the vagaries of men's worldly impulses" is, how to say this, naive. Go tell the wives of Henry VIII how marriage was "protection"."

Get past your hang-ups with men and onto the point I was making about the historical basis for marriage. Your point makes about as much sense as saying the man in this story should have been protected by marriage from his wife - maybe the wife was even the "breadwinner":

Henry the VIII was a psychopath. You should should fear ANY psychopath, be it man or woman, and their vagaries. Unless of course, you intended to argue that all men are psychopaths in the Henry the VIII tradition. Then you are just looney....

"On what legal ground, then? Remember, this is being argued out on the imperfect, and fatally logical ground of legalisms."

An argument against incest might hinge on the power relationships and influence between family members adding an edge of coercion or grooming to the relationship.

An argument against polygamy might hinge on the way polygamy often turns up in cultish groups that are dysfunctional in many other ways and the marriage isn't particularly voluntary.
Plus the added potential for fraud.

Exceptions to each could be found - incest between related adults who were put up for adoption, and adopted by different families, who have no connection other than the genetic one. A case of this very nearly happened in Connecticut and was in the news. A brother and sister wound up dating without knowing they were related.

For polygamy, there are probably a very few genuine, voluntary polygamous relationships driven by choice, not by family or community pressure. But mostly what you hear about are isolated groups in Utah marrying off their 14 year old daughters.

There are sufficient real problems in each case to support handling each individually, and preventing any automatic fall down a slippery slope.

I can take the people who oppose gay marriage because they are admitted bigots, but those who try to rationalize a ban on gay marriage are either stupid or disingenuous. I'm sorry if I've offended anyone with this, but let's call a spade a spade. I mean, how in the world does a couple of gay guys or gals getting married demean my marriage to my wife? Seriously, does anyone have a rational response to this? Honestly, I feel sorry for people who have so little faith in their marriage and I urge anyone who feels this way to seek immediate marriage counseling.

Scott has it right. Since religious marriage has existed for several thousand years, then the creation of civil marriage EXPLICITLY took marriage out of the moral/religious realm. Once it was placed into the civil realm, then it MUST adhere to the same standards of equal protection that every other civil institution does. I know that some will say something like doctors have to meet standards, so how is this different? Well, it is different because there is no compelling societal interest in preventing gays from marrying. Sorry, but making a few bigots feel safer in their sexuality is not a compelling state interest.

As for gay marriage being an intrusion upon the religous beliefs of some; this is a complete non-starter. Most religions place restrictions upon not only who they will marry, but which marriages they view as valid. Allowing gay marriages does nothing to infringe upon this right. The flip-side of this coin is that the more conservative religious elements do not have the right to tell other religions who they can and can't allow to marry - what right do Catholics, for instance, have to tell Unitarians that they can't allow gays to marry?

Bithead writes: "The type of arguemnts you use have been offered against the current movement and the response of the courts have been the cause of this discussion.... You're offering cultural responses.

And isn't that the entire argument surrounding this entire discussions? That there ARE no cultural exceptions to their narrow read of the consitution?"

I remain mystified by the fear that gay marriages will somehow undermine the "institution of marriage." Will heteros quit marrying because they come to think of it as a "gay thing"? Will straight guys (for example) decide to be gay so they can marry someone who doesn't mind if they leave the toilet seat up? Will married couples renounce their vows if gays get to be married, too? (When I was saying my vows, I don't recall thinking, "Wow, and the really great thing is gays don't get to do this!") I've read all the predictions of doom, but just exactly how is it supposed to come about?

And don't tell me it has to do with the "propagation of the species." Who thinks heteros will stop having sex if gays get married? I know many find homosexual sex disgusting (unless it involves really hot chicks, of course), but if you're spending that much time thinking about homosexual sex, some sober self-examination may be in order.

At bottom, the argument that marriage will be destroyed by gay marriage depends upon the idea that gays are so revolting that heteros couldn't possibly be expected to share an institution (or a bathroom) with them. That ain't pretty.

Proponents of the slippery slope argue that gay marriages will lead to (for example) polygamous marriages. But the argument in favor of gay marriage is that it causes no harm the state is authorized to prevent. If, unlike gay marriage, polygamy does produce such harm, that distinguishes it from gay marriage. The harm it presumably causes is the "wedge" on the slippery slope.

So, I turn the question back around. Why not allow polygamous marriages? If there's a good answer to that question, the problem goes away, and the slippery slope proponent can rest easy. But if there's no good answer to that question, then the proponent of the slippery slope has just lost the argument -- the slippery slope only works if the horribles at the bottom really are horribles.

For me this is not just a social policy issue. This is one those breaching policy issues that extends to economic and social concerns.

Does anyone else suspect that since homosexuals generally are among the more educated, higher wage earning, politically active sections of the population that potential declines in income tax revenue is a variable considered to oppose gay marriage?

Personally I think you protect the sanctity of marriage by rinsing your marriage certificate of the government's ink. Any debate on marriage should seek to answer what exactly its role is in a democratic society. Is it a religious institution? Is it a private or public matter?

I assume that I am just naive on sexuality and birth traits, but I've never decided that I was a heterosexual. But I also never thought that I might be gay. My view of marriage is rooted in my understanding of a strong family that has children. Even the childless marriage I have reservations about, but I don't see any politicians making a stink about that.

The state -- and society-- has a number of reasons for rejecting polygamy:

* tax -- Only one spousal dependent per tax return, please

* welfare -- We only support a couplke with one spouse, thank you

* child support, divorce

* Polygamy, as practiced, is one guy, lots of women. Certainly wouldn't work that way here. Could have situations where husband and wife are both married to multiple people. That brings a whole host of problems.

* The right to be arbitrary. We as society believe marriage is for two, and that's the end of it.

* The lack of any kind of groundswell for polygamous marriage. There is some intellectual ferment on the issue of gay marriage. We haven't had too much in the way of US pro-polygamy argument since 19th century Utah.

And how does one deal with that, in a legal sense, outside of the subjects being of legal age?

And Patrick;how in the world does a couple of gay guys or gals getting married demean my marriage to my wife? Seriously, does anyone have a rational response to this?

Simple and rational; if a little lenthy...it's a gross misuse of the label.

Consider the parallel brought up by James Miller some months ago. In making his case against Civil unions as a substitute for Homosexual 'marragies" Miller compares marriage and civil unions as brand names. Says he:

Brand name analysis proves that civil unions for gay couples can't fully substitute for marriage. If you started a fast-food restaurant, it would be easier to call your place McDonald's than to use some new unknown brand name. Sure, in time you could build up this new brand to become as locally well-respected as McDonald's name, but for the near future at least, you're better off going with the existing brand.

Sullivan picked up on that argument and responded:

Miller says the critical question is whether expanding marriage to include gays will "dilute" the brand. I think it will strengthen it by making it universal.

To which I respond:

Not so fast. Let's extend this hypothetical a bit.

Would MacDonalds respond with your thinking, Andrew, or would they file a damage suit? They would of course do the latter, pointing out that the people stealing the MacDonalds name, are trying to push their product as something it was not, and claim (not without some justification) that doing so caused the real MacDonalds chain damage, wouldn't they?

I can take the people who oppose gay marriage because they are admitted bigots, but those who try to rationalize a ban on gay marriage are either stupid or disingenuous. I'm sorry if I've offended anyone with this, but let's call a spade a spade. I mean, how in the world does a couple of gay guys or gals getting married demean my marriage to my wife? Seriously, does anyone have a rational response to this? Honestly, I feel sorry for people who have so little faith in their marriage and I urge anyone who feels this way to seek immediate marriage counseling.

Why does a person on the east side of town object to a murder on the west side of town?
Why does a whole village want to know if a convicted sex predator is living in the community?

The point is that much of our social policy is targeted towards some, yet it affects us all. To pretend it doesn't is just naive. Social constructs more often than not affect the innocent more than the guilty. Take sexual harrassment policies or child custody disputes. How many men are left proving their innocence in cases of his word against hers? Yes some men are terrible fathers and guilty of sexual misconduct, but all men are awarded the blame when accusations like this arise.

The flip-side of this coin is that the more conservative religious elements do not have the right to tell other religions who they can and can't allow to marry - what right do Catholics, for instance, have to tell Unitarians that they can't allow gays to marry?

Are any "conservative religious elements" seeking to intrude upon religious institutions that may want to marry gay couples? The anglican church can marry as many gay couples as they want and the Catholic church could care less. Churches every minute are going against the will of the "conservative religious elements" in the United States.

Lastly, can you explain how someone's opposition to gay marriage is "disingenous" or "stupid"? Your comments to me come off as smug. You assume that people, specifically the opposition to gay marriage, are only looking out for themselves, yet almost every policy ever created in the US was looking out for everyone or so attempting to.

From a civil standpoint, that's currently true. Marriage is what laws define it as. But if the laws change, your statement becomes false.

From any other standpoint, your statement is simply a matter of belief. And the question I pose to you is this -- why can't a loving, permanent union between two men or two women be a marriage? Why do you believe that?

An observation about the relation of changing the definition of marriage to include same-sex relationships to other changes that would recognize plural marriages and marriages between people one or both of whom is below the minimum age recognized by American law:

Both kinds of marriages are widely practiced by various cultures in different parts of the world. One of the greatest leaders of the early American West, Brigham Young, was a polygamist; Gandhi, if I am not mistaken, was married at 13. Both kinds of marriages can be abused -- there is no form of human relationship that cannot -- but both can result in family situations, including psychologically well-adjusted children, that are satisfactory to the people involved. If gay unions must be recognized as marriages, why must other unions not be?

As a poster up-thread noted, society does not have to be strictly logical; we can proscribe some things, like serving cats in restaurants, without a strictly compelling logical reason. In this case, we would have to, and the reason this creates a problem in this instance is that under the procedures favored by the advocates of gay marriage we would not make the decision ourselves. Instead, a court would decide whether someone denied the right to marry who they wanted to was being denied equal protection in violation of the Constitution -- considering the Massachusets Supreme Court decision on gay marriage as a precedent -- and we would be required to live with the result. An added bonus, if the discussion we are currently hearing is any indication, is that people objecting to further extension of the definition of marriage could expect to be abused as bigots, haters, racists, insensitive to other cultures, advocates of anti-miscegenation laws and so forth.

Advocates of gay marriage appear to be content with this, and I suppose this shouldn't be surprising. If democracy were easy it would be practiced everywhere, and it must be tempting to people used to getting what they want when they want it to take shortcuts around the time-consuming democratic process -- especially, it must be said, since many of the people supporting gay marriage through arbitrary judicial ruling are the same people who thought allowing the Supreme Court to decide that the Constitution included a right to abortion was such a good idea.

But those of us who care about representative democracy should recognize the extent to which it is at stake in this matter. The people may, wisely or not, change the definition of marriage or any other ancient social institution if they want to. That is what self-government means. Allowing someone else to do so -- yielding passively to the arbitrary judgment of unaccountable authority -- is a step back from the kind of self-government that defines what America is, and what it means. However predictable it may be that so many people are eager to take this step back as long as they get what they want now, it is still disheartening.

From a civil standpoint, that's currently true. Marriage is what laws define it as. But if the laws change, your statement becomes false.

Well, here's where we differ, and it bears on the argument I've made as regards the culture and it's values.

What you say may be true from a legal standpoint.
The issue, however is more than merely a legal one, as I've suggested.

And to answer your last question; The bottom line, is that it's simply not the same. The roles inside such a relationship, are roles defined over thousands of years, and cannot be duplicated in same-sex unions. Men and women are different at fundemental levels that laws simply cannot address.

Nor can these roles be adjusted, to be 'more open' without re-defining roles in traditional bonds.

The only reason that a Constitutional amendment is under discussion is that a formal amendment appears to be the only way to get activist judges to respect the democratic process. I am not a supporter of gay marriage. I would be more than happy to have an open public debate and to have the issue decided by the *legislatures* of the several states. If the people of Massachusetts want legal gay marriages and the people of Mississippi don't, then let Massachusetts have legalized gay marriages that aren't recognized in Mississippi. Of course, the Left will never let this happen and will keep running to court until they find a judge willing to agree with them. If there was any alternative to an amendment, I would support it; but I can't see what it would be.

If the President had said, I want an amendment to the Constitution that forbids the courts from reading a right of gay marriage into the federal constitution,or any state law and state constitution, I think we would be having a somewhat different debate on this thread. Because I think many of those who have declared themselves as supporters of gay marriage cannot be thrilled with the way this issue has come to the fore. (Overreaching court decisions and a mayor's defiance of state law.)

But that's not what the President did. Instead, he called for an amendment defining marriage as being between a man and woman only. That's overreach, plain and simple. What the President demands, at best, is a Plessy vs Ferguson approach to marriage. And, as a result, the whole issue is now in play. And the result, as noted by an upstream poster, will be a discussion and debate of the issue. And like most debate in this Rush Limbaugh, Bill O'Reilly age, it will be united with a lot of howling about bigotry and scare words and scare quotes. But in the end, you'll get the debate you're looking for, and the result will be democratic and not passive.

Heterosexual irresponsibility in bearing and rearing children torpedoed children as a justification for confining marriage to heterosexuals. They were having too many children out of wedlock or in short-term serial marriages.

My personal experience as a California attorney indicates significant cultural patterns are involved in this unrelated to racial, religious or national background. As an example, there are a lot of Okies in my area and their unusually chaotic family patterns are quite similar to the Scots-Irish family patterns depicted in Fischer's _Albion's Seed_. The commonly fatherless black urban underclass child-rearing pattern has its own deep historical roots.

The impact on society of such undesirable behavior has driven major developments in family law which have effectively divorced (pun intended) responsibility for child-rearing from marriage. The latter is desirable but the kids have to be raised properly absent marriage.

I.e., society regulates what it has to. IMO the whole process was, is and will inexorably lead to a separation of civil unions (contracts) between adults, and the legal consequences thereof, from what is called the "institution" of marriage.

My wife practiced law for ten years here (she graduated from UC Berkeley's Boalt law school in Joanie Caucus's class - they had a cutoff of Joanie in a chair at the graduation ceremony) and currently teaches high school. She is also an elder of the Presbyterian church here (as was her father and our then 17-year old daughter). Her opinion this morning is that it is _inevitable_ that marriages will become a purely canon law institution and that civil unions will be the only form of what is presently called "marriage" coignizable in civil law. I agree.

Those who advocate the FMA or an equivalent are blaming gays for what straight irresponsibility with children has really done. And they are fighting Hari Seldon's "dead hand of history".

Well, AM, if there are gay marriage supporters unhappy with the way this issue has been forced (I mean the Massachusetts Supreme Court ruling, not the San Francisco circus) they have been awfully quiet about it. Put another way, while I'd like to believe what you say about our having a different debate on this thread if the President had supported a different amendment, I see no evidence whatever that you are right.

We may get a chance to find out for certain. As I suggested upthread, there no consensus as yet among gay marriage opponents as to the precise wording of a marriage amendment; it would not surprise me at all if the amendment finally presented to Congress differed materially from the FMA being printed in the papers today. Whether the amendment would, or could, say what you suggest it say about restricting court jurisdictions I do not know. As I say, to most gay marriage supporters it will probably make no difference.

To Jim Clark: Bush v. Gore, if you will recall, turned on whether the US Supreme Court should let stand the attempt of the Florida Supreme Court to change Florida election procedures after the election had taken place. The USSC's activism lay in its decision that the Florida Court's activism could not stand.

There is no direct analogy to the gay marriage case, because the Massachusetts SC opinion interpreted the Massachusetts constitution on a matter not touching on federal law; the case in question cannot be appealed from the state to the federal court. In both cases, though, we do see a state court ruling to achieve a desired result, the Florida Court to elect Gore and the Massachusetts Court to mandate gay marriages be recognized by that state (and therefore by all others). We also see the same people who supported the Florida Court supporting the Massachusetts Court, and many of the same people who held that changing Florida election law was a task for the elected representatives of Florida to do now arguing that changing the definition of marriage is not something the Massachusetts Court should be allowed to do. Whatever else one might call this combination of circumstances, it is hard to think of it as ironic.

I essentially agree with Kelli’s position on this issue. One should not, though, overlook the fact that she prefers to vote Democrat. At this very moment, Kelli is trying to figure out some way not to pull the lever for President Bush. Thus, her uneasiness concerning the liberal Democrat stance on gay marriage should scare the hell out of Democrat strategists.

I’ve now had around 24 hours to think further about the political implications of Bush’s decision. The President is not being cynical and truly does believe in what he’s doing. However, it also significantly increases his reelection chances. Senator Kerry will only carry the bluest of the blue states. There is no sense wasting a minute of his time in the red ones. This may very well be the first campaign in recent American history where the Democrat candidate will not even visit some states even once! As for Senator Edwards, his campaign is rendered meaningless and a total waste of time. Kerry would be foolish to even put him on the ticket. Only someone from a swing states is of any value. The near future polls, which deal exclusively with the state by state electoral votes (the hell with the useless overall popularity nonsense) will probably show the current white House occupant with a commanding lead.

I'm sorry if I was unclear, what is either stupid or disingenuous is opposing gay marriage while claiming to not be a bigot. One is either so stupid that they don't recognize bigotry or they are being disingenuous by claiming to not be a bigot.

As for this:
Why does a person on the east side of town object to a murder on the west side of town? Why does a whole village want to know if a convicted sex predator is living in the community?
The point is that much of our social policy is targeted towards some, yet it affects us all. To pretend it doesn't is just naive. Social constructs more often than not affect the innocent more than the guilty. Take sexual harrassment policies or child custody disputes. How many men are left proving their innocence in cases of his word against hers? Yes some men are terrible fathers and guilty of sexual misconduct, but all men are awarded the blame when accusations like this arise.

Well, I'm still waiting for a rational response to my question. In every instance you cite, the state and society have compelling interests in outlawing murder and sexual harrassment. In such instances, the state is very clearly attempting to protect one citizen from having their rights intruded upon by another. Whether the state is always just in its enforcement is a question that is (and should be) settled in the courts. In the case of gay marriage, the state has no reason to believe that anyone's rights are being intruded upon by allowing gay marriage. As for child custody, the state is intervening to protect the interests of the child since the child can't reasonably be expected to be able to defend their rights on their own. Similarly, we outlaw statutory rape and underage marriage. Again, any misapplication of this principle does not provide a reasonable justification for outlawing gay marriage.

Regarding this:
Are any "conservative religious elements" seeking to intrude upon religious institutions that may want to marry gay couples? The anglican church can marry as many gay couples as they want and the Catholic church could care less. Churches every minute are going against the will of the "conservative religious elements" in the United States.

The problem with this argument is that outlawing gay marriages privileges the rights of those churches that won't marry gays over those that will. It is saying that the marriages conducted within the Catholic Church are legally binding, while those that meet the strictures of the Anglican Church are not. What is the justification for this?

As for the "smugness" of my comments - I think befuddled is more like it. I am honestly open to a rational opposition to gay marriage and am getting tired of waiting for one. Let me reiterate that appeals to religion or "morality" do not qualify since, a) civil marriage explicitly took marriage out of the religious realm and b) since there are several religions which allow gay marriage, how can we justify accepting only some religions' conception of marriage?

Lastly, how can you claim that this policy is in keeping with an ideal of only passing laws that are looking out for everyone (or attempting to)? Do gay's not warrant inclusion in "everyone"? How are we even attempting to look out for them?

Bush v. Gore turned on a -one time only- application of the equal protection clause. When the 9th circuit panel tried to use this "legal analysis" in the California recall mess, they were correctly overturned.

Twas a clear case of "judicial activism".

Not to hijack the thread, but "judicial activism" stretches back to John Marshall and Marbury vs Madison, and includes such cases as Brown vs Board of Education and Gidion vs Toul (the rt to council.) So, whats the problem?

“Because I think many of those who have declared themselves as supporters of gay marriage cannot be thrilled with the way this issue has come to the fore. (Overreaching court decisions and a mayor's defiance of state law.)”

I can understand why Democrats are enraged by Ralph Nader. However, why aren’t they equally irritated with the gays who pushed the marriage debate out in the open during an election year? Doesn’t this play right into the hands of the “evil” Karl Rove?

ZathrasBush v. Gore very well. As a litigator and political junkie, I took quite a keen interest in the case. I read most of the briefs and all of the opinions, and I watched as much of the oral arguments as I could.

In Bush v. Gore, the Supreme Court created a brand new equal protection theory to halt the recount before it could be completed. It then said it would never apply this newly created theory to any other case -- and of course it hasn't. To justify interrupting the recount in midcourse, the Supreme Court held that GWB would be irreparably harmed if the recount continued, because an erroneous recount might taint his victory. Of course, ending the recount terminated the electoral process and insured Gore's defeat, but that wasn't the sort of irreparable injury they were concerned about. That's "activist" by any definition.

To add even more irony, it's now clear that GWB would have won under the "intent of the voter" standard Florida employed. Thus, the Supreme Court's precipitous intervention wasn't merely "activist," it was entirely unnecessary. And for more irony still, consider that if the Florida recount had been allowed to proceed, there would have been no taint at all on GWB's election. Thus, the Supreme Court produced the very harm it sought to prevent.

There was no need for the Supreme Court to dive in. Imagine that the Florida Supreme Court had certified a Gore slate of electors, and the Florida legislature certified its own slate of Bush electors (as the Republican-controlled Florida legislature said it would do if a slate of Gore electors were certified). Under the federal laws Congress adopted after the only other disputed presidential election, the Republican-controlled Congress would have decided which slate to seat. If the Republican-controlled Congress couldn't decide, the matter would then have been decided by Florida's governor, Jeb Bush.

The 2000 election was a tie, and under any set of circumstances GWB was going to emerge the victor. But the Supreme Court nevertheless violated the first rule of litigation -- don't step on your dick. If you see no irony here, you aren't looking.

I guarantee San Francisco Mayor Newsom is not gay. His wife worked her way through law school as a lingerie model.

Newsom is a conservative by San Francisco standards - he is a successful businessman who earned his money the hard way. His biggest threat is Supervisor Matt Gonzales, on Newsom's political left. Gonzalez - a scion of privilege running as the Green Pary candidate - almost beat Newsom in the mayor's race, despite Newsom's unanimous endorsement by state & national Democratic bigwigs.

Newsom's pandering to the gays on this transfers a significant chunk of Gonzalez' support to Newsom, and so pretty much protects Newsom from a re-election challenge in 2007. It also gives Newsom much-needed support when he runs for statewide office in 2010-2012.

Victory in the California Democratic primary for any statewide office is a reasonable guarantee of winning the general election too, because California's GOP has been captured by true fruitcakes who consistently defeat any GOP primary candidate who might win the general election. Arnold Schwarzenegger could not have won a statewide GOP primary for any office as a non-incumbent - his only shot was the recall and he took it.

Which means Newsom's sale of fake marriage licenses to gays is a can't lose situation for him. It (a) heads off the worst threat to his re-election as mayor; (b) gives him a major leg-up when he runs for statewide office; (c) adds several hundred thousand dollars to the San Francisco treasury in exchange for worthless pieces of paper; and (d) won't actually result in any valid marriages because the licenses are both illegal and use an improper form even if they were otherwise legal.

It's a rip-off of gays (California Penal Code section 182(a)(4) and section 532) and gets Newsom's name in the news. What more could a California politician ask for?

I know, I know. I should say "what more". Ok, here it is:

Newsom has figured out a way to get gays to pay him for privilege of screwing them, and make them like it.

“In Bush v. Gore, the Supreme Court created a brand new equal protection theory to halt the recount before it could be completed.”

That’s absolute hogwash! You are conveniently overlooking the fact that there was no consensus regarding the very legitimacy of certain ballots. The talents of a psychic mind reader would have been required to determine the intentions of many voters. Thus, a “recount” would have been inherently senseless. Moreover, there was no way in hell to accurately recount ballots in such a tight election involving millions of people. A human error involving just one ballot in fifty thousand would have inevitably skewed the results. A counter need only be a bit tired and make a minor mistake---and their whole effort would have been in vain. The first recount may have gone to Gore, the second one to Bush, and this nonsense would have gone on forever. A real scandal occurred during that time period: the academics who specialize in statistics were too cowardly to admit the truth. The recount was a statistical impossibility and they knew it.

Lastly, how can you claim that this policy is in keeping with an ideal of only passing laws that are looking out for everyone (or attempting to)? Do gay's not warrant inclusion in "everyone"? How are we even attempting to look out for them?

Patrick, this question is *exactly* what I was talking about when I asked:

"If our legal and moral rights, as I suggest, decend from the culture, and it's values, it's morality, then what guarantee of our rights do
we have, if that culture ceases to exist, by means of either government fiat, or inattention? "

What homosexuals are demanding is a bedrock, foundational change in our culture. But rights, and freedom, are cultural concepts, and are pretty much meaningless outside the culture. Ask yourself, 'freedom from what'?

If you doubt the cultural influence on irghts, a look at what's what in Iraq and Iran today should be instructive.

Put more simply:

If rights, as I suggest, are a product of the culture, and we change that culture at the foundational level, what rights survive?

“Newsom has figured out a way to get gays to pay him for privilege of screwing them, and make them like it.”

That’s only the half of it. President Bush has little chance of winning California unless his national poll numbers get above 10%. Karl Rove has probably wrote off the state as a viable opportunity. Alas, the recent gay marriage shenanigans will tighten the race considerably. My guess is that the Democrats will see their lead drop to only 5-6 points. What does that mean in the cold and harsh world? The Democrat candidate, John Kerry, will be forced to spend enormous time and resources in the California. Let us not forget that Al Gore barely visited the state in 2000.

Gee David, you sound like the result is what was important (as a fair recount was "impossible")and not an application of the law to the facts, or a decision by the court not to get involved. The "law" applied was a novel, single use, legal theory - judicial "activism" at its worst?

Your problem, Patrick, is that you have things backwards: it is the advocates of gay marriage that must give a reason for change, not the defenders of tradition.

If we used your logic, we’d have to revisit statutes on murder, theft and rape every generation. “Conservatism” is based in large part on the assumption that the rules we have are there for a REASON, that laws and traditions have a purpose that preceding generations understood and we should only deviate from those traditions with good reason.

So the burden is on you, not me.

So far, you have failed to offer any compelling reason for transforming an ancient institution of society other than a fraction of a percent wants it that way. You promise the same golden horizons that other social uplifters promised, but have not a single test case to back you up. And then you wonder why we are skeptical.

If gay marriage is foisted on us by courts, why should we not expect polygamy to be next? “Oh, that’s different,” you say, insisting that love between two people is somehow more worthy than that between three for four. Legally, however, you are on the exact same ground. A marriage of three loving people need be no more violent than that of two and only your own prejudice against polygamy can explain your insistence that it’s a bad thing.

Thus: bigotry against polygamists is okay, because they don’t have an organized lobby. Logically, you have done nothing to discount their argument.

This is because your entire argument rests on imaginary rights to marriage and an assertion that happiness for a very few is all the justification you need to change core traditions. Well, if marriage is a right, anyone can exercise it, at any time and in any numbers they choose. And if happiness is a justification, then again, all you need is a group of people who claim polygamy will make them happy and they will have the exact same standing.

TexasToast got it exactly wrong with the history of marriage: it’s always been about children, that’s why property rights were so important. Honestly, once you die, what difference does your inheritance make? You’ll be dead, you won’t need it any more. The ones who benefit are…YOUR CHILDREN. Get the picture?

Marriage is about providing for that crucial next generation, that is why every society has some form of marriage and it is based not on love, or happiness, or rights, but on raising the next generation.

Marriage in the US is crippled – largely because the uplifters sold us a bill of goods on no-fault divorce. Have any of those responsible for it admitted it was a bad idea? Has weakening marriage and creating generations of fatherless youth made us a happier, stronger country?

Logic and reason suggest that when you are already in a hole, you stop digging.

If marriage is about “love” and “happiness,” then obviously young men shouldn’t bother to get married and deal with their children. They should wander off and sire more kids because marriage and children are completely separate issues. Fatherhood is optional.

The societal costs for this are immense. It is all well and good to claim to be a libertarian, but when your neighborhood turns into a warzone because three quarters of all children are born out of wedlock, you don’t really have much liberty, do you?

Libertarianism can only work in a moral and ordered society, otherwise you get violent sinkholes like Haiti.

*Every time I hear someone argue that anyone opposed to gay marriage because of its effects on the family should really be worrying about divorce or "Vegas-style" marriages, I want to scream.*

Ben, it is those who claim to be opposed to gay marriage for the sake of the "sanctity of marriage" to whom we ask to apply the same reasoning to "Vegas-style" quicky chappels, serial divorcers or marriages of convenience. Shouldn't there be a moral standard applied to all?

*"If we are to prevent the meaning of marriage from being changed forever, our nation must enact a constitutional amendment to protect marriage in America," the president said..*

Forever? Wow! Hasn't the current meaning of marriage gone thru similar monumental changes time and time again? I read the earlier posts about "1000 yr" history & such. Marriage seems like a pretty durable institution, whatever current state it finds itself in.

I agree that our creaky electoral processes were inadequate to sort out the "truth" in Florida. The election was just too close. But having personally represented clients in election contests, I'm here to tell you that that's the way it is in every recount in every election cycle across the country. The only thing that was different about the 2000 Florida recount is that it was conducted under the harsh glare of a national spotlight, with everyone hip deep in lawyers. For a change, people actually saw the sausage being made.

If it were applied elsewhere, the spurious equal protectiton theory the Supremes cooked up in Bush v. Gore would invalidate any recount it was applied to. That's why the Supremes specifically held that they would never apply it again.

Keep in mind, I think the election was basically a tie, and GWB was inevitably going to emerge the victor, no matter what the Supremes did. Nevertheless, the Supremes gave him a one-time pass. That's "activism." Ironies abound.

And by the way, exclamation marks don't make your points any more persuasive.

“TexasToast got it exactly wrong with the history of marriage: it’s always been about children, that’s why property rights were so important. Honestly, once you die, what difference does your inheritance make? You’ll be dead, you won’t need it any more. The ones who benefit are…YOUR CHILDREN. Get the picture”

Gee, I do estate planning for a living, and the ones who benefit are …

ALL OVER THE LOT.

I have created trusts for gay persons without children because they were afraid, with great justification I might add, that their families (and I dont mean their children) would contest their wills and get a jury of their peers to ignore their last wishes and give their property to people who wouldn't take the time to visit them in the hospital.

Here's more on why the Bush v. Gore equal protection theory was bogus.

The Court held that the 2000 Florida recount violated the equal protection clause, because Florida's statutorily-mandated "intent of the voter" standard didn't give county election officials sufficient guidance. This meant that there could be variability within and among Florida counties in the treatment of similar ballots.

But such variability is inherent in the original counting and is in no way peculiar to the recounting. Different precincts and different counties within a state use various different voting mechanisms, all with different sources and rates of error. Not only do voters in different counties have different odds of their votes being counted, but these error rates in the counting were large enough to be outcome-determinative in Florida. Moreover, voters in different states similarly use different machines and procedures, which also produce different rates of error.

The uniformity the Supreme Court said was necessary to meet the equal protection clause simply does not exist. But unlike the general public, they know better. That's why they were careful to insure that Bush v. Gore would never be good precedent.

Since I taunted you first, I'll ignore those comments on your post, and answer your question instead.

You wrote:
"People seem to lose sight of the fact marriage was NEVER an issue of equal rights....Gay marriage proponents feel they are promoting the institution of marriage; this is ONLY true if they are ALSO for eliminating no-fault divorce and other issues that have wrecked the institution of marriage for heteros...."

From the comments on the board, I doubt that many of us married folk believe the insitution has been "wrecked". In fact, even the people I don't agree with, like Kelli, are in favor of marriage as an insitution; they fear that allowing same-sex marriages will undermine our culture.

I'll agree with you - Western marriage until the late 20th century was not about equal rights. It was mainly about property rights, inheritance, provision of heirs, familial survival, and accessiblity to socially approved sex partners. Only _after_ the civil rights movement in the United states, did US marriage begin to take on the moniker of an equal partnership. And frankly, looking at some of the folks my age who've married lately, I've got to wonder about the equality bit. It's still a radically new idea. You have _no_ idea how many times I received the "obey" speech from Mom and Grandma in the run up to my wedding...

However, marriage does convey certain property, and legal benefits to spouses that a long time lover or a common-law-wife/husband do not receive. The "equal rights" that Mayor Newsom referred to has everything to do with those rights - after all, if you've lived with someone for 51 years, been a spouse in every sense of the word, but are denied spousal rights due to your sexual preferences, you're being discriminated against.

We could argue that since marriage conveys so many benefits on so few, that we should abolish civil marriage rights, leaving marriage to be a cultural instituion. I think this would be a mistake for those ideas of property and inheritance. It's had enough trying to work out property disputes where everyone's legal relationships are established. Can you imagine it where they are not? Talk about a winfall for the ABA.

Your only-also clause make no sense; the reasons people are married vary (see almost every post) and we all are grappling with the question "what is a legitimate marriage". I think you could be for marriage, and gay, and not give a damn about no-fault divorce, unless you (like so many hetrosexual people before you) find that you need a divorce. I suspect all those couple lining up in San Francisco just want to spend the rest of their lives with each other...and aren't thinking about divorce quite yet, unless something _really_ goes wrong on the honeymoon.

You ended with "There is nothing noble in the cause of gay marriage if it is only to get their syndicated version of gay/lesbian Bachelor/Bachelorette...." Couldn't agree more. But I suspect that's not the reason why gay people want to get married. It maybe that despite these decadent times people like the idea of committing themselves to each other and having social and famlial approval of their commitment. I know that I like being married. I recommended it for those who are in madly, sanely, eternally in love.

yours,
Carolina

p.s. Thank you for proving my point that the insitution of marriage doesn't protect wives and children from their husband/father's worldly impluses. :)

“If it were applied elsewhere, the spurious equal protectiton theory the Supremes cooked up in Bush v. Gore would invalidate any recount it was applied to. That's why the Supremes specifically held that they would never apply it again.”

I am going to sidestep the constitutional aspects of the U.S. Supreme Court’s decision. Instead, I insist that pragmatically they could not have not done anything else. There was simply no statistical way of ever doing a fair recount. An election involving a mere ten thousand total voters would have been arduous task. 5,963,110 voters cast ballots in Florida. This made it an inherently impossibility.

Once again, it needs to be emphasized that the university scholars specializing in statistics knew this and kept their mouths shut. They were obviously afraid of reprisals from their liberal cohorts. This is one of the greatest scandals in American academic life.

OpinionJournal.com has proposed a constitutional amendment as follows: "Nothing in this Constitution shall be construed to require any state or the federal government to recognize any marriage except between a man and a woman." If this were adopted, Massachusetts or Vermont could legalize any kind of alternative family structure they please, and the rest of us could sit back and observe for a couple of generations to see how it all turns out. If the gay rights advocates are correct, and society and children prove not to be harmed, then other states would probably go along and recognize the alternative arrangements from Massachusetts and Vermont. If, on the other hand, it appears after 30 or 40 years that the recognition of gay marriages has adverse consequences for the institution of marriage and the rearing of children, then the other states would probably continue to refuse to recognize such marriages.

This seems to me to be an entirely fair approach, one that liberterians, conservatives, federalists and even the occasional reasonable liberal could agree on (although the most adamant members of the religious right and their counterparts on the left would probably not find it acceptable).

You're probably right that it was impossible to determine the "truth" in the Florida recount. But that undeniably messy procedure is exactly what the law expressly required. The Supremes changed the rules in mid-course, for one time only. That's "activist."

Well, I'm not sure where to begin with this talk that it is up to supporters like me to "prove our case." Indeed, in the Massachusetts case, there was no statue requiring marriage to be between a man and a woman. What the justices (rightly) did was to determine that, since there is nothing in the constitution expressly forbidding gay marriage, then the equal protection clause requires the state to extend to them the same rights as extended to others. As for proof, the standard applied in this case was the same one applied in Brown vs. Board of Education; separate institutions (i.e. Civil Unions) are necessarily not equal, and clearly violate the equal protection statute. The plaintiffs in that case clearly showed that there are numerous benefits conferred, by the state and federal governments, upon married couples that are not open to gays and lesbians. I'm unclear how this a) isn't clearly a case of discrimination and b) how interpreting the constitution is beyond the purview of the courts.

I'm guessing, however, that the "proof" the opponents want is proof that gay marriage will not negatively impact society. Unfortunately, as well all know, it is next to impossible to prove a negative to complete certainty. The best I can do is repeat the comparison others have previously offered: the courts overturned bans on interracial marriages (another "long-established" tradition) and our society did not collapse. So, rather than attempt to do what I hope you know is impossible, I asked in my first post for those opposed to offer some highly reasoned arguments to ban gay marriage. Unfortunately, nothing in your post comes close to answering this much easier question.

As for arguing that we need to be "conservative" with regards to changing laws, you have picked exactly the wrong argument. It is not the "activist judges" who are making a clean break from American legal tradition and written law. As alluded to before, the standard has been, for some time, that the government must have a compelling state interest to infringe upon personal freedom, and that the equal protection clause mandates that the governments provide the same rights and benefits to all citizens. Adding an amendment to the constitution to restrict both personal freedom and flout the equal protection clause, in the face of 200 years of legal history is significantly LESS conservative than extending the principles of Brown to the marriage rights of gays and lesbians.

Some of your other points are less important, so I will offer only passing comment:
1. "If we used your logic, we’d have to revisit statutes on murder, theft and rape every generation." - As I said before, prohibition of crime is an entirely different animal; in such instances, the state is protecting the rights of an individual from the intrusions of another. When two competent adults agree to get married, who exactly is the victim? Who's rights are we protecting by outlawing gay marriage?
2. "So far, you have failed to offer any compelling reason for transforming an ancient institution of society other than a fraction of a percent wants it that way." - I actually discussed, at some length that the institution of civil marriage is not an ancient institution. Moreover, I discussed how civil marriage, merely by being enacted, EXPLICITLY made marriage a legal, civil act. Once marriage became the purview of the state, rather than religion, "tradition" counts for significantly less. Moreover, as touched on above, why privilege the tradition of civil marriage over the tradition of equal protection?
3. "You promise the same golden horizons that other social uplifters promised, but have not a single test case to back you up." - I actually offer no such golden horizons. I argue that allowing gay marriage will result in no net change to heterosexuals and benefits only to gays and lesbians. It is fairness that drives my reasoning, not a belief that it will strengthen society (though it might).
4. "If gay marriage is foisted on us by courts, why should we not expect polygamy to be next? “Oh, that’s different,” you say..." - I actually never said this. In principle, I don't have a problem with polygamists, though I agree that there are questions about whether there is really "consent" in many cases, but I wouldn't be opposed to allowing it. In an attempt to ward off the inevitable criticism that we should allow incest and underage marriage, as well - the first is a public health issue (increased rates of birth defects) and, in the second, we do not grant that children have the capacity for consent. In both instances, the power dynamics make it doubtful that both sides can willfully consent, anyway.
5. "Marriage in the US is crippled – largely because the uplifters sold us a bill of goods on no-fault divorce." - What does this have to do with allowing gays to marry?
6. "If marriage is about “love” and “happiness,” then obviously young men shouldn’t bother to get married and deal with their children. They should wander off and sire more kids because marriage and children are completely separate issues. Fatherhood is optional." - Huh? Again, what does this have to do with gay marriage?
7. "Libertarianism can only work in a moral and ordered society, otherwise you get violent sinkholes like Haiti." - Haiti was hardly a bastion of freedom or an open society. Indeed, considering the violence in Nazi Germany, the Soviet Union, Communist China, Cambodia, etc., it would seem the absence of freedom is much more highly correlated to violent societies than too much freedom.

“But that undeniably messy procedure is exactly what the law expressly required.”

The heck with the law. In this case, the law is an ass and must be jettisoned for the good of the nation. I am immediately reminded of Robert Jackson declaring that the Constitution is not a suicide pact. You are literally arguing for the destruction of the United States---and I’m not being the least bit facetious. Continuing with an inevitably fruitless recount would have wrecked our economy and social fabric. Pragmatism should always take priority when such damage is so overwhelmingly likely.

Here is my take on the whole mess, a question for supporters of "marriage equality" and the civil rights aspect of the debate, and a longshot solution for this true "quagmire":
Personally, I feel Bush's hand was forced. I think I believes in the spirit of the amendment (marriage=man+woman) but would have rather ignored the whole thing, knowing the political risks. I think the Democrats are in a pickle trying to placate their gay constituency, while not turning off roughly half the country. The Republicans aren't free either; while everyone could reasonably expect this outcome, the GOP only reinforces their worst caricature.
For the supporters of gay marriage on the grounds of equal civil rights: I agree that their is an inequality, and a pretty glaring constitutional question, as to whether it is fair to bar any group from the entry into a civil institution. However, the civil rights argument smacks of hypocrisy. If true equality and civil rights is motivating factor behind the push for gay marriage, then why stop there? If it is discriminatory to bar homosexuals, then why isn't discriminatory to bar polygamists? polyamorists? 10 year-olds? NAMBLA members? Where does equality end and cultural standards began? I think the best answer I have yet seen is here: http://www.reason.com/hitandrun/004442.shtml#004442
Lastly here is my radical solution: abolish the word "marriage" from the civil institution all together. The term is obviously so loaded it leads highly rational people to say and write things that aren't (see Andrew Sullivan). Call all civil marriages (which all married people in fact are) civil unions. Leave "marriage" to the religous or pseudo-religious, where the term originated anyway. In the eyes of the law and the Constitution, everyone will be united civily [sp], while only those who really desire marriage can seek it on their own terms. I understand that this solution will NEVER come to pass, and that it ignores a large reason why gays want marriage in the first place (social acceptance and condoning of their traditionally persecuted lifestyle, as Sullivan beautifully pointed out in a recent piece). But honestly, this solution makes everyone angry, so it has to be the best one.

Bush doesn't expect this to pass. If he did, he would have announced it with a lot more hoopla. He had to signal to his base that he couldn't stand by and watch as gay marriage -- which I support, for what it's worth -- was imposed by judicial and executive fiat. I hope the foreign pol conservatives/social liberals who are so up in arms over this -- hear me, Andrew? -- keep this in mind. This is *not, not not* going to be a cornerstone of the president's reelection strategy. It's read meat thrown to the paleo lions. No need to keep throwing it in -- in this instance, once is enough to keep them happy. In other words, he's counting on the announcement itself to keep the right in line. No need to push actually amending the constitution with this thing.

I don't mean to pick on David, for his point is well taken. The law is not the be all and end all. That is why the push for "original" meaning of an eighteenth century document makes no sense in the twenty-first century.

All variants on the FMA I've heard of, including Opinion Journal's, conflict to at least some extent with the Uniform Custody of Minors statutes of most states. I don't practice family law and so can't say one way or another whether the conflicts can be worked out with only minor changes to the uniform act or any proposed FMA variant.

I can say that the subject presents legal hassles which non-legal commentators can't begin to appreciate. This is a major reason for avoiding a federal constitutional amendment on the subject.

California's state constitution is a horrible example of the consequences of using constitutional amendments to enact what should really be ordinary legislation. Voter-driven initiatives are what principally caused this, and those were driven by the legislature's attempts to either avoid responsibility or pay off bribes aka campaign contributions from special interests.

California's experience here shows that federal constitutional amendments should be limited to general principles, with legislation to fill in the details being authorized.

Here's my example of an FMA of that sort:

"Congress is authorized to enact legislation concerning limitations on marriage based on gender. Such legislation shall be binding on the states."

Regarding the 'activism' of the U.S. Supreme Court in Bush v. Gore, please don't forget that what they were doing was beating up the idiots of the Supreme Court of Florida (not known for nothing as SCOFLA) for not following the Florida Constitution (regarding the authority of the State Legislature).

“I don't mean to pick on David, for his point is well taken. The law is not the be all and end all. That is why the push for "original" meaning of an eighteenth century document makes no sense in the twenty-first century.”

The original creators of the law mandating a recount in each and every election were not considering such extremely atypical circumstances as the Florida situation in 2000. An election involving over fiver million voters was probably the furthest thing from their mind. Thus, the law must be either updated or utterly rejected in our current era.

I recommend people claiming that homosexuals getting married only want societal acceptance take a look at atrios (http://atrios.blogspot.com/) to see a listing of some automatic benefits that come from marriage, some of which cannot be done by civil contract (the most memorable of those is being compelled to testify against your spouse in a court of law).

"The heck with the law. In this case, the law is an ass and must be jettisoned for the good of the nation."

I disagree, but that's beside the point. The point is that it's "activist" for a court to make up the law. Having attained office with the help of an activist Court, it's ironic that GWB says activist courts require a constitutional amendment discriminating against gays.

old maltese wrote:

"Regarding the 'activism' of the U.S. Supreme Court in Bush v. Gore, please don't forget that what they were doing was beating up the idiots of the Supreme Court of Florida (not known for nothing as SCOFLA) for not following the Florida Constitution (regarding the authority of the State Legislature)."

I don't forget. But the remedy for bad law is good law, not more bad law. "He did it first" is an unadmirable defense of the United States Supreme Court.

Tom Holsinger wrote:

"Did you read the dissent by Florida's chief justice telling his colleagues exactly what the federal Supremes would do to them? That was fun."

I didn't have any fun reading it, but he was spot on. The USSC gave them a warning shot, and they ignored it. Not smart.

“I don't mean to pick on David, for his point is well taken. The law is not the be all and end all. That is why the push for "original" meaning of an eighteenth century document makes no sense in the twenty-first century.”

Pardon, what I meant to say is that judicial activism is part and parcel of our legal system. English common law, upon which the law in 49 of our states is based, is almost completely "judicial activism". The law is organic, and must develop and change over time to fit its society. It is the servent, not the master.

Bush quite clearly stated, on the Larry King show in 2000, that the issue of same-sex marriage absolutely should be left to the states, that it was not a Federal matter. I agree with *that* Bush, but not the current one.

BTW, do you notice how similar this discussion probably is to those discussions in the mid-20th century about whether to allow people of different races to (gasp) marry? How such marriages would destroy our country's moral structure, how such marriages are repugnant, etc.

How many out there believe that within the next fifty years gays and lesbians will be granted the same rights and responsibilities of marriage as heterosexual couples have today? I think the odds are very high. (I'd put a lot of money on it, but, as an assistant professor, there's precious little I could put down.) And from the perspective of fifty-years from now, I think those who vehemently oppose gay marriage will be viewed quite negatively, in much the same way we view those who fought to maintain discrimination in previous generations.

Below is a proposal for an alternative Amendment to the FMA. It is built partially around Donald Sensing's Feb 13th Alice in Wonderland posting. I sent it to all my friends. What do you think?

**********

To all:

I think the proposal of a Federal Marriage Amendment is fuzzy headed thinking on the part of Conservatives. The Constitution is about the structure of government, and limiting the powers of government, not limiting the freedoms of citizens. That has been tried once with Prohibition and proved to be a disaster.

Gay marriage is only the symptom of the problem, not the disease itself. The REAL problem is a runaway judiciary who refuses to abide by the laws it ostensibly is dedicated to preserving. The proper Amendment would sharply curtail the power of the judiciary. To wit, please contact the White House, your Senators, and your Congressional Representative to support the following. Copy and paste the text if you desire.

US House of Representatives - http://www.house.gov/writerep/
Follow the instructions on the drop down menu to find your Representative and email him/her.

Here is the text I suggest you copy:

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Regarding the Federal Marriage Amendment proposal:

I think a better Amendment would be to establish some sort of Legislative and Executive review similar to Judicial review. Judicial Review dates back to Marbury v. Madison in 1803, and is not a Constitutional power written in the Constitution. In response to that decision,Thomas Jefferson stated:

[On the] "question whether the judges are invested with exclusive authority to decide on the constitutionality of a law" ... Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches."

[On the "ultimate arbiter" of the Constitution:] "The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal ...

"The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."

"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. ... their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."

"... our Constitution a complete felo de se [act of suicide] [if] intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow . . . The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."

"My construction of the Constitution is . . . that each department is truly independent of the others and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially where it is to act ultimately and without appeal."

So according to Jefferson, each branch has a right to say what is, and what is not Constitutional. Since Judicial Review is not actually a power of the Courts according to the Constitution, I think an amendment more clearly defining how we determine the Constitutionality of laws would be preferable to the FMA.

Obviously, Judicial Review has some merit. This need was overlooked by the founders. But if Judicial Review is going to be the practice of the courts, then it should be explicitly defined in the Constitution. In addition, since all Branches are co-equal, this amendment should include the powers of Executive Review, and Legislative review, and a mechanism for resolving Constitutionality issues when the three Branches of government disagree.

I propose an advisory panel in the Administration to advise the President, and a Legislative panel in either the Senate or the House, or perhaps both. Also, if a supermajority of the Congress is instituted to override judicial "veto", then a supermajority of the Court must also be required to overturn lawfully passed legislation.

The power to Veto legislation was given to the President, not the courts in the Constitution. And a mechanism for overriding that veto is in place. The problem is that there is no mechanism for overriding the "veto" of the Courts. This should be resolved.

Then there would be no need for the FMA. The issue in most conservatives minds' is the runaway judiciary, not gay marriage. Even though I personally oppose gay marriage, if Californians, and New Englanders want it, why should I care as a citizen of another state. What I strongly oppose is the right of Californians and New Englanders to decide the issue for me without consulting me.

Remember "taxation without representation." It is the judicial oligarchy that must be overthrown. Then we are free to make our cases to the public without fear of judicial fiat. I have no need to impose my views on others, regardless of how much I disagree with them. What I cannot stand for is others imposing their views on me.

If the citizens of San Francisco want to all join hands and jump off a cliff to their doom, I think they are fools. But if they come to my home, drag me to the cliff, and forceably throw me over, then I strenuously object, and will fight them tooth and nail.

Conlon, I disagree on your comparison of inter-racial marriage to that of same sex marriage. The laws against inter-racial were due to factors that, pardon the pun, were skin deep.
The objections were due to false impressions of the equality of the races and whether one race was "better" than the other. It had nothing to do with the behavior of the individuals involved and marriage was still defined as that between a man and a woman, not a direct relative.
The question on same sex marriage today involves the basic behavior of the individuals involved who have decided that their emotional and sexual preferances are towards a member of the same sex.
This behavior is in contradiction of the historical definition of marriage.
While the history of marriage has progressed through phases such as the prohibition of inter-racial unions and multiple spouse marriages, the common factor in all of history was that marriage involved a man and a woman (or women in the past instances of polygomy). Same sex unions break new ground and historical precedent. And precedent is a basis for much of our legal system. Should same sex marriages overturn thousands of years of precedent? I think this is actually outside the realm of our legal system. Who knows.

I have no need to impose my views on others, regardless of how much I disagree with them. What I cannot stand for is others imposing their views on me.

That sounds like an excellent reason for supporting gay marriage, Scott. It means you're not imposing your view on others who want to get married but can't under the present law: and you're not having your views imposed on, since no legislation is being passed to force you into a gay marriage.

Your (otherwise excellent) letter with regard to the Constitution omits to mention that if the FMA were passed, it would be the first amendment to the Constitution since Prohibition that was designed to remove a right from US citizens, rather than extend the rights of US citizens.

I recognize that there may not be anyone left to read this, but I wanted to dispel a few myths:

1. Your eyes will not stick that way.
2. You will not go blind.
3. The Constitution does, indeed, grant significantly more power to the courts in interpreting the Constitution than it grants to either the President or Congress. I admit to not being a legal scholar, but I read quite well and the Constitution seems unusually clear on this point. There are several passages that are of interest:

I want to stress the inferior position they are given to the Supreme Courts in this instance. I think the assumption that the Judicial branch is given judicial power over the Congress is made explicitly clear. Note also that, other than the section on amending the constitution, they are not given any authority to interpret or even defend the Constitution.

b. II/1/8 states that the President, "Before he enter on the Execution of his Office, he shall take the following Oath or affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Nowhere here (or elsewhere in the document) is the President given power to arbitrate disputes between actors or to interpret the Constitution.

c. Article III, which deals with the judiciary is especially useful, so I will quote it at length
Article III:

Section. 1.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish...

Note, especially, the "ONE supreme Court" line. I think this clearly gives the Supreme Court singular authority in judicial matters. Moreover, unless the meaning of "judicial" has changed significantly over the past 200 years (sorry, I lost my access to the OED), then the Supreme Court is clearly DOING ITS JOB in judging cases such as this.

Section. 2.

Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;...to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State...

Sorry for those who want to claim "Judicial Activism", but the constitution, in plain English, gives Supreme Judicial Power to ALL Constitutional cases AND, particularly, to those cases that involve a dispute between Citizens and the government (i.e. questions of whether the government can, under the Constitution, restrict gays from marrying), as well as those between States (i.e. whether other States must recognize the marriages of another). Note that this doesn't claim that they have authority over the Massachusetts case, because their authority only extends to Citizens claims against a state to which they are not a citizen. Massachusetts, however, has similar authority in arbitrating claims against Massachusetts by its own citizens, which is exactly what the case legalizing gay marriage was.

d. Speaking of questions of whether one state must accept the marriages of another:

IV/1 - "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."

Is their any ambiguity in this paragraph? Please don't misconstrue the second sentence to think that Congress has power to decide which laws one state must accept, it merely states that they shall define how one proves that such an Act, Record, or Proceeding exists.

e. Finally, as to whether society can pick and choose who gets privileges:
IV/2/1 - "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

Now, can we stop with all this "Judicial Activism" hogwash? The Constitution is pretty damn clear. Sure, there is some ambiguity at the margins, but not enough to claim that the Courts do not have a special place as interpreters of the Constitution.

As for whether the courts have the right to "make laws" as some allege, they do indeed. Common Law, which accepts precedent as law, is significantly older than our country and is the basis for the legal system at the federal level and for 49 of the 50 states (Louisiana, you are off the hook on this one). If our founding fathers had wanted a Continental system, they would have instituted one.

That was a very well-written post, and you certainly make some compelling arguments about how our governmental system SHOULD be set up, but the fact is that what Jefferson wanted is NOT the final word on the Constitution, and in no way should supercede what actually made it into the document. The document that resulted was not strictly the vision of Jefferson. Indeed, many argue that John Adams was the greater intellectual force. Whichever is true, we made a choice long ago that we would be governed by a Constitution enacted by various representatives, not by the fiat of a single (albeit brilliant) man.

Is what Jefferson thought about the powers of the branches of government interesting? Yes. Should we abandon what the Constitution says because Jefferson thought differently? Absolutely not.

A lot of the arguments against gay marriage -- that it is dangerous tampering with an ancient institution, and so forth -- really apply to gay cohabitation.

Used to be, love and marriage went together like a horse and carriage. But that isn't so any more; people live together willy-nilly. In former days, by social custom, they would have basically had to get married. If they didn't, they would perforce have been considered to be married anyway -- Remember "common-law" marriage?

But that's over. Should it be? I don't know, but the people have voted with their feet.

The culture war against homosexuality is lost. (At least, not until the next turn of the wheel, but lets leave that for future generations.) You're never going to get gays to stop living together as partners in what are in effect common-law marriages.

Since you can't realistically stop gay cohabitation, you might as well regulate it. That's just conforming the law to social reality.

Anyway -- why are clergymen involved in executing civil contracts (marriage contracts) anyway? I blame this all on Constantine -- the church should never have gotten mixed up with the state.

Maybe if we take away the clergy's right to make marriages, we could give them a consolation. Allow them to issue driver's licenses, or something. Sea captains would be empowered to grant high school diplomas.

posted by: voice of the democracies on 02.24.04 at 03:27 PM [permalink]

G.V.Z. wrote - "A question about if the amendment passes: what would be the definition of "man" and "woman?"

Actually this is a much more complicated question than most people - including, I suspect, those writing these idiotic laws and amendments - realize. How exactly does one, for the purposes of the law, define "man" and "woman"?

Reproductive status? Too many people are infertile for a variety of reasons. Gonadal status? Too many have had orchidectomies, hysterectomies, ovarain ablation, ect., again for a variety of reasons. Genital status? Can be surgically altered, not to mention numerous conditions that lead to genital ambiguities and accidental alterings and/or destruction of genitals. Oh, I know, we'll go with genetics, right? We'll look and see if one is "genetically male" or genetically female".

How, exactly?

By "genetic sex" what we mean is karotype, the shape of the last chromosomal pair. Karotype 46XX is female, karotype 46XY is male, everyone learned that in Bio 101. Except that, well, it's not nearly as simple as all that.

The first problem is that pretty much everyone is mosaic to one degree or another, which means that while for a normal natal-female the vast bulk of their cells will be 46XX, some variable number of their cells will be 46XY. This means that relatively simple karotype tests aren't worth squat - something the Olympics found out when some of the women they disqualified because their tests showed them as male went home and later gave birth to children... Opps - and even an in-depth test isn't necessarily definitive.

The second problem is something called intersexuality. There are a host of genetic and/or physiologic conditions that result in non-standard genetic and/or physiologic sex. Here's the kicker, not everyone who's intersexual knows it.

A biggie for that is what's known as Klinefelters Syndrome. This is a condition whereby a physiologic male has a non-standard sex karotype. The most common variant is an extra chromosome, resulting in 47XXY, but just about any variation and combination you can think of can and does occur. The thing is that while many of those with Klinefelters suffer from symptoms that lead to the condition eventually being diagnosed, many are asymptomatic. No one knows exactly how prevalent klinfelters is because it doesn’t' necessarily lead to medical issues and because karotypes are not commonly run on patients unless there's a good reason to. The best estimates are that klinfelters occurs in about 1:1,000 male births, but it's quite possibly a lot higher than that.

Next up, AIS (Androgen Insensitivity Syndrome), which occurs in about 1:13,000 births. In AIS a "genetically male" (karotype 46XY) child has a genetic anomaly that causes their body not to be able to produce and/or utilize androgens - "male" hormones. Said child is born with undescended testes and a truncated vagina (truncated because a womb never forms). As these children appear female and develop as such, this condition is generally not discovered, when it is in fact discovered, until the fail to start menstruating at puberty. By any definition that matters in the real world, AIS adults are women, defining them as men strictly by karotype would be absurd.

And then there's CAH (Congenital Adrenal Hyperplasia), which also occurs in about 1:13,000 births. In CAH a "genetically female" (karotype 46XX) has an error in cortisol production that leads to high androgen levels that leads to one degree or another of fetal virilization. While this is more likely to be detected early than AIS due to a dangerous metabolic imbalance that tends to go with it, genital ambiguity sometimes results in these children being mistaken for and raised as male. Are heavily virilized CAH adults men or women?

I could go on, there are dozens of other known conditions and variants thereof, but hopefully I've made my point. Best estimates are that 1:100 births involves some form of variation from the male or female norm and 1:1,000 are sufficiently different to result in surgery to 'correct' the difference - correction, by the way, being anything from moving the urethral opening to surgically changing the child's sex. Oh, and then we've got medically induced intersexuality (Progestin Induced Virilization, mother using various hormones or anti-hormones during gestation, ect.) and accidentally caused destruction of genitals - generally during circumcision - and resulting surgical sex reassignment (see Dr. John Money and the John/Joan case for starters).

No simple definition of "male" and "female" is going to cut it unless you're willing to just simply write off all of these people and accept some of the absurd results that would inevitably happen with a simple male=XY/female=XX test. I can't wait to see what happens the first time some FMA supporter loses their deceased wife's life insurance because the insurance company had them tested and it turned out they were Klinfelters and didn't even know it. Think it won't happen? Think again.

TexasToast wrote - My wife is a psychologist who does therapy for transgendered individuals, who in our state are legally the gender they have changed to after sex reassignment surgery.

While most jurisdictions allow for altering birth and other records in the case of a post-operative transsexual, what is generally known as "legal change of sex", when tested the courts have generally held that to be irrelevant. See Littleton v. Prange (Texas Fourth Circuit court of appeals) and Gardiner v. Gardiner (Kansas Supreme Court). In Littleton, Mrs. Littleton's husband died under questionable circumstances, she sued the doctor for malpractice. During deposition Mrs. Littleton admitted to being a transsexual, the defense moved to have the case dropped on the grounds that the marriage was not legal and thus Mrs. Littleton had no standing. The judge concurred, as did the appellate court. In Gardiner, Mrs. Gardiner was married to an elderly and very wealthy man, when he died she inherited his estate. His son didn't like this very much so he hired a PI who discovered that Mrs. Gardiner was a transsexual. The son sued, claiming that since Mrs. Gardiner was transsexual the marriage was not legal and she should not inherit squat. The judge agreed, the appellate court disagreed, the Kansas State Supreme Court upheld the original decision and the son ended up inheriting the estate. Note that in neither case was fraud alleged.

The FMA, given the ambiguities and difficulties inherit in trying to medically define "male" and "female", will almost certainly expand Littleton- and Gardiner-style decisions into the general public. Lawyers and insurance companies should be salivating at the very thought, everyone else is going to be in for some rude awakenings.

TexasToast: the reason most of your work involves planning for people without children is because the laws and traditions of marriage provide for that already. It is assumed that married couples will have children and that they will inherit their property.

It is only because of the foundation traditional marriage has provided that we can even imagine couples marrying for benefits, fun or sex.

I find it interesting that no one has bothered to follow gay marriage to its logical conclusion: if marriage is about love and has nothing to do with children, why should children expect to have married parents?

We know that the best environment for raising children is a family consisting of biological father and mother. This is why our laws recognize marriage as a special and indeed vital institution.

Coming from a single-parent home is the biggest single risk factor for our children today. It trumps income levels, environment, everything. Want to double a kid's risk of incarceration? Have his parents split up or have him born out of wedlock.

If marriage is simply a "right," if it is about equality and and love, then fathers should feel zero responsibility for raising their children. That is the message we as a society are sending, and we are reaping the whirlwind in our inner cities.

What we should be doing is following the example of history: that marriage is the natural state of man and woman and that children should only be concieved and raised within its confines. Of course, being human, we often fail to achieve this ideal, but that doesn't mean we should stop striving for it.

That is why the attempts to link gay marriage to miscengination is utterly disingenuous: blacks and whites marrying posed a threat to white supremecy because they produced CHILDREN.

It was not the IDEA of white and black having sexual relations that was distasteful, it was the LEGITIMATE OFFSPRING that posed the problem.

No legislature could ever expect to ban sex between the races, but they could try to shut down legitimate procreation.

I hate to deliver a biology lecture, but gays can't procreate. There is no danger of "gay half-breeds" threatening the segregationist system.

Once again, you are reduced to taking an unrelated thing (racial discrimination) to add moral weight to your cause.

I will now make a prediction: this will not end with gay marriage. It isn't about "equal rights" and never has been. The core struggle is about defining and controlling society.

Once gay marriage is legalized and enshrined as a right, gayness itself will be a federally protected right.

What this will mean is that any criticism of homosexuality will become a hate crime. And since marriage will also be a right, all institutions that provide legal marriage will be required to do so, without discriminating between gay, straight or polygamous.

Churches that resist will be punished and closed.

Think I exaggerate? It's already happening in Canada. This is about control, which is why the left is on board yet again. This is their big chance to finally shut down those annoying right-wing churches once and for all. The left has never tolerated dissent (try holding an affirmative action debate on any college campus to test this) and this is one more way they have to implement their vision and decide what may and may not be discussed.

Already we see people who defend an ancient tradition branded as "bigots," which of course means that you don't even have to discuss things with them. It isn't debate, it's pure intimidation.

The irony is that liberterians are foolishly rallying to their side, blissfully unaware of what they are about to unleash.

If the societal effects weren't so serious, I'd almost enjoy the moment with the libertarians realize what they've done.

Many gay couples have children. If marriage is the best environment to bring up children (and I agree) then why systematically deny that environment to the children of gay couples?

Claims that gay marriage will "destroy society" are hypothetical, based on no evidence that supports them and running counter to what evidence we do have about gay marriage.

But the children being denied the benefits of married parents are real people: these are the people that the anti-marriage bigots want to discriminate against.

I hate to deliver a biology lecture, but gays can't procreate.

I hate to deliver a biology lecture, Alec, but gayness is not the same thing as sterility. Being gay or bisexual does not prevent procreation: it merely guarantees that any children conceived will be planned for and wanted.

What this will mean is that any criticism of homosexuality will become a hate crime. And since marriage will also be a right, all institutions that provide legal marriage will be required to do so, without discriminating between gay, straight or polygamous.

Churches that resist will be punished and closed.

Think I exaggerate? It's already happening in Canada

Just so.

I said last summer in fact, when ths came about:
>>>

Yes, that blithering idiot Jean Chretien is mumbling about how Churches will be exempted from being forced into recognizing these ‘unions’. However, reality rears it's head.

Do any of you recall the case in Western Canada, (Saskatchewan, I think) wherein the court ruled that the provincial hate crime laws applied to a man who took out an ad whose only content was four bible verses, condemning homosexuality… and if I recall rightly, there’s currently a bill in the Commons which echoes that provincial statute on which that ruling was based? Does Jean Chretien plan to blot those laws? I doubt it. The argument resulting from such an act, would be between Chretien and the Canadian Human rights commission, (who also seems to feel the Church's stand on homosexuality a criminal matter). It would be loud, and almost interesting, but in the end, unavailing, even if he were so inclined. So, we can take his comments as worthless political positioning... positioning under the nearest cover.

TexasToast wrote - My wife is a psychologist who does therapy for transgendered individuals, who in our state are legally the gender they have changed to after sex reassignment surgery.

I was wrong and Myria is correct. I had not researched the legal result of gender reassignment as I have not dealt with a client whose gender has been reassigned, but was speaking about my wife’s client’s driver’s licenses that reflect the altered gender. It appears that the courts have said that gender reassignment does not affect inheritance rights. Luckily for me, I don’t have to tell my wife’s clients that they cannot be married to whom they choose, as I would have to tell them if they were my clients. Mea culpa.

TexasToast: the reason most of your work involves planning for people without children is because the laws and traditions of marriage provide for that already. It is assumed that married couples will have children and that they will inherit their property.

Alec: Most of my work involves traditional married folk with children, and most of them leave their property to their children. I fail to see how having the state recognize gay relationships for inheritance and other property purposes would change this.

As an aside, I would never advise anyone to rely on inheritance/intestacy law in planning an estate, so gender reassignment would not normally be an issue. As to your slippery slope points, read upthread. I think the state should only grant civil unions to everyone, and should get out of the marriage business altogether.

Note that the lawyers here are pretty much agreed that the government shouldn't be involved at all in marriage.

The government has developed the legal mechanisms and social welfare bureaucracies for protecting children which in past centuries had been provided by marriage and churches. This was done because so many children have been born out of wedlock or live with only their mothers.

So children are out as a justification for limiting marriage to heterosexuals. There are other reasons, but this one is dominant.

The "western" institution of marriage as we know it was developed in Western Europe in the centuries after it had been Christianized. It was primarily a means of distributing property in a time when there was no civil law.

Only now we have well developed civil law. All means of distributing property are now governed by civil contract and probate law. This will be what civil unions do.

So the only remaining effective purpose of marriage is spiritual, which is very important but not one the government should be involved with.

Which is where my wife was coming from when she said yesterday that it was inevitable that there will eventually be a complete separation of marriages from civil unions. Marriages will become solely a religious matter and civil unions exclusively governmental.

“Many gay couples have children. If marriage is the best environment to bring up children (and I agree) then why systematically deny that environment to the children of gay couples?”

The gay couples have already denied that environment, haven’t they? Heather may have two mommies, but does she have a daddy? Why do you choose to deprive her of a father figure? Or, a mother figure? You are reinforcing my argument: children are accessories, items that we do not necessarily have to take responsibility for. I can fill a turkey buster and hand it to a lesbian couple and any results are not my responsibility.

And we wonder why so many men walk away from their responsibilities as fathers.

“Claims that gay marriage will "destroy society" are hypothetical, based on no evidence that supports them and running counter to what evidence we do have about gay marriage.
But the children being denied the benefits of married parents are real people: these are the people that the anti-marriage bigots want to discriminate against. “

What evidence is that, the soaring rates of out-of-wedlock births in Scandinavia? Everywhere gay marriage is implemented, overall rates of marriage are collapsing and more and more children are born out of wedlock. Gay marriage may not be the cause, but it clearly is linked. It would be nice of any advocates of gay marriage addressed this.

Oh, and thanks for calling me a bigot. You just proved my point about shutting down debate.

You will notice that none off the people opposing your position feel the need to attack you personally. Thanks for returning the favor.

“I hate to deliver a biology lecture, Alec, but gayness is not the same thing as sterility. Being gay or bisexual does not prevent procreation: it merely guarantees that any children conceived will be planned for and wanted. “

I thought ABORTION meant that any children conceived will be planned for and wanted. Silly me. So now we have someone promising that all gay and bisexual people will, through the virtue of same-sex marriage, eliminate unwanted pregnancies within their social groups!

Once again, we have someone selling utopia. Sorry, I’ve been burned by the last few attempts.

I’m grateful, for you once again illustrated one of my points: parental responsibility is now optional. Gay couples cannot create children, so you are expecting someone else to do it. Once again, the taboo about conceiving children outside of marriage is obliterated. Your policy would once and for all destroy any notion that marriage and parenthood are related.

Two gay men cannot create a child. They must find a woman willing to serve as an incubator.

This may be the result of a previous marriage, perhaps because one of the men “discovered” he was gay. In this case, the successful child-oriented gay marriage requires a failed traditional one as a prerequisite. Thus child of gay marriage must first inflict the pain of divorce on a helpless child. How humane of you.

Of course, there is an alternative: you could allow the THREE of them to marry, which is where we are headed.

Or you could allow women (and presumably men for lesbians) to hire themselves out as mercenary child-providers, making a further mockery of parenthood and family.

Once again, in your zeal to find newly-discovered rights for the very few, you are willing to destroy what little connection remains between marriage and children.

I ask you again: if marriage is not about raising children, are you comfortable with a society in which 75 percent of children are born outside of wedlock? Take a long look at our inner cities before answering.

I don't see gay marriage as a cause of the decline of marriage as an institution, but rather a symptom of it.

If marriage collapses, I simply don't see how the next generation of citizens gets civilized. Children are not plants that simply need to be watered. They need the steady, stable environment of a family, sustained over many years. As a father of two, I can attest to the selfless committment that many parents make. Marriage is society's "machinery" for codifying the responsibilities of parenthood. Social movements that weaken the psychological meaning of marriage, weaken the bonds that hold families together. Fractured families result in fractured children, leading to poorly socialized adults. Children need parents there... day after day, year in and year out. Its not easy!

Marriage is meant to make people think seriously about committment BEFORE they start making children.

This is also why marriage is seen as a "special" institution, and afforded certain rights and benefits. The process of raising, nuturing and socializing the next generation is an essential function of all societies. Marriage and family is the way Western societies have traditionally achieved this. If the institution of marriage falls, then something will have to be invented to take its place.

What does this have to do with gay marriage? I hope my point is obvious. Gay people want to get married largely for symbolic reasons. But in my mind this is a misuse of marriage. Marriage did not exist for thousands of years through thousands of societies because it codified romantic attachment. That's what Valentine's Day is for!

Sorry to say, but I do. Aside from the fact that I doubt the story is accurate or complete (you shouldn't believe everything you read on the internet), I ask: Why, given that we do not share the same constitutional, legal, or political system should our experiment be expected to turn out the same as Canada's? Do you honestly believe that the government is going to start shuttering churches? Has there ever been an instance of systematic governmental persecution of religion in this country? Aside from the long-standing (though now reversed) policy of the IRS to treat the Scientologists as a for-profit institution, I can't think of anything close. Please, no comments about how things like abortion or gay marriage qualify as persecution. For those who don't understand why, look at it this way: Catholics oppose gay marriage, Jews keep Kosher; would allowing gay marriage OUTSIDE the Catholic Church be any more discriminatory than allowing non-Jews to eat a Bacon Double Cheeseburger? If yes, why?

As for the general idea that churches will be forced to marry gays and lesbians, there is over 200 years of legal precedent, as well as provisions written into the Constitution, that guarantee religious freedom. To date, the Catholic Church has not been forced to marry a Jewish couple, the Episcopalians have not been forced to marry Unitarians, and Muslims have not been required to marry Lutherans (if anyone can find confirmed evidence to refute this, please do). If, for 200 years, churches have been able to decide who they will and won't marry, why will they suddenly be forced to marry gays? I mean, does anyone really believe this stuff?

Aside from the fact that I doubt the story is accurate or complete (you shouldn't believe everything you read on the internet)

Actually the story at the time ran in the Toronto paper as well as a source I frequent in Vancouver.

Why, given that we do not share the same constitutional, legal, or political system should our experiment be expected to turn out the same as Canada's? Do you honestly believe that the government is going to start shuttering churches?

If left to their own devices, yes. Do you really think that we're *not* going to see a time when anyone speaking up against homosexual behavior won't be officially branded as someone participating in 'hate speech'? It's already happening in this country.

How long do you suppose it'll be before churches who hold to their teachings will be branded by the oh, so open government, to be institutional level purvaors of hate?

Actually there is precedent - the Mormons were persecuted by every government which could get away with it, and their support for polygamy was banned by the federal government. The latter is precedent for the FMA prohibiting recognition of gay marriages by the Episcopalian Church, etc.

A better argument is that the American people are abandoning marriage for reasons independent of gay issues, and that the FMA proponents haven't shown any connection, other than their religious beliefs, between gay marriage and weakening of heterosexual marriage.

Stanley Kurtz of NRO tried to show such a connection with ludicrous results - his reasoning was identical to that used by proponents of Global Warming. One only had to change the names.

I'm all for strengthening marriage to protect children, and protecting kids in any way which works, given my family law experience, but the public is voting against marriage with their lifestyles.

This issue arises from religious biogtry by some Christians against homosexuals. My church knows all about that type of biogtry - we were rescuing blacks from slavery via the Underground Railroad while other churches were using the Bible to justify slavery - sons of Ham and all that.

My church's library has some books concerning that pre-Civil War theological discussion. White Southerners made even our pamphlets really unwelcome.

The post-WWII debate over anti-misegenation laws is a pale shadow of the pre-Civil War debate over slavery.

Stick to the subject of marriage or not, but if not, don't complain about the results.

Bithead,
"If left to their own devices, yes. Do you really think that we're *not* going to see a time when anyone speaking up against homosexual behavior won't be officially branded as someone participating in 'hate speech'? It's already happening in this country."

When exactly did hate speech become a crime in this country? It must have been sometime after today, because there are neo-Nazi websites, publications, and rallies being held in full view of the authorities. Heck, Mel Gibson's father is allowed to give television interviews claiming the Holocaust never happened and Steve Carlton is quoted ad nauseum upon his induction into the hall of fame about how 12 Jewish Bankers control the world. Sure, most of society rightly looks down upon these morons/bigots, but the government has yet to infringe upon their rights to espouse their crackpot theories.

As for the Boy Scouts and funding, Churches are already excluded from receiving federal funds.

Alec,
"At the very least, the IRS would simply pull the tax-exempt status from churches that fail to comply with US codes.

Never underestimate the willingness of the left to bend the rules to get its way. Try speaking out on any college campus and see how much "freedom of speech" you really enjoy."

I'm a bit unclear how you get from the fact that colleges aren't exactly bastions of free speech to the conclusion that the government will somehow persecute religions that don't allow gays to marry. Aside from all that, you still haven't adressed the fact that the government has NEVER forced a church to marry people it didn't want to. Exactly why will this be different? If a Roman Catholic priest isn't forced to marry two Jews (or even a Jew to a Catholic in some more conservative parishes), it strains credibility to think anyone will force them to marry a lesbian couple, no matter what their religion.

"It's one thing to say: "Do what you want, we won't recognize it," it is another to arrest people.

No one is suggesting that, so get over yourselves."

Wow! How long has it been since the "Activist" Supreme Court had to strike down sodomy laws, PRECISELY because they sought to exact criminal penalties for private behavior? A couple months? I would suggest reading the newspapers a bit more carefully.

Tom,

Thanks for pointing out the Mormon Church example - can't believe I brain-farted on that. I still think that concerns about large-scale government persecution are misplaced in this day and age, but I have to admit it wouldn't be entirely unprecedented. Great post all around.

I'd love to see you compare being sold, whipped and beaten as a slave to being denied a marriage license from the Prudenville Village clerk.

Talk about hyperbole. One of my ancestors was imprisoned for teaching slaves to read and died from the diseases he picked up on a southern jail.

Anyone locking up Rosie O'Donnell? Is Ellen DeGeneres not continuing to make boxcars full of money?

She can vote, make dirty jokes, rake in cash, but there are two things she can't do: have a baby with another lesbian and marry a woman.

Both have to do with biology. Good luck repealing those laws of nature.

Indeed, I'm not aware of any vice-squad raids on gays in the last 30 years. The Texas statutue being overturned didn't free a single prisoner, did it?

Yeah, that was a HUGE injustice.

As to your other arguments, they are sophomoric: simply because something has not happened yet does not mean that it CANNOT happen.

15 years ago there were no lawsuits against gun manufacturers for selling a legal product in a legal manner that was misused by criminals.

Using your iron-clad reasoning, they can't have happened since, can they? Funny, I can give you two dozen examples of that impossibility.

As I said, this is about power, pure and simple. The left has found yet another club to crush those it doesn't like, with libertarians going along as the useful idiots.

Earlier on the thread, some asked how one could possibly "prove a negative" regarding the societal damage gay marriage will do.

I will respond by showing that despite the claims of gun-control zealots, there is proof that concealed carry laws raise murder rates. I can give others where policies designed to do one thing, did the exact opposite. Welfare, for example, increased poverty rather than reducing it. Housing projects created mini-slums rather than providing safe havens for lower-income people. The list goes on.

And I note that no one yet has expressed eagerness for increased out of wedlock births, nor have they explained how we can urge young men to take responsibility for their actions while at the same time defining marriage as optional.

Marriage as an institution is heavily damaged. We should be working to shore it up, teaching new generations of children to respect it, to reinforce its core values and wait until they are married before having children.

We should not treat it as just another lifestyle choice that exists independent of child-rearing and parenting.

When no-fault divorce was introduced, marriage ceased to be anything more than a common contractual agreement -- the name still had nostalgic value but the "arrangement" was nothing more than a common contract. As such, there is no legal reason to keep it confined to two adults of different sexes -- indeed, there is no reason to keep it confined to two adults of the same sex. Contractually, it can be expanded to multiple adults and any mix of sexes.

Dr. Drezner's "should" is interesting coming from an economist: should in the "rational man" sense or should in some higher, moral sense that we can always come to Dr. Drezner to give us?

What his base is for "should"ing us isn't clear but he is indeed emphatic, and I'm sure he will tell us that all reasonable people agree with him.

And, hey, as he points out the Republic stood before when it dithered on a "dumb-ass" amendment.

Exactly what we need is a ruling elite of Drezners who tell us what should and should not occur irrespective of votes of the majority or the ideals of any minority (Mormons?) other than his.

Can he possibly stand on any higher ground? The aire of moral superiority and surety is refreshing.

Art Gilkey writes: "That'll be difficult, given the Full Faith and Credit Clause of the US Constitution."

Doesn't apply. There are many licenses that aren't honored across state boundaries. Medical licenses to practice, for example.

So far, however, not anything thing that's regarded by the proponents as a civil right. That's what's really alarming about Andrew Sullivan's position, and a few others. They claim to support competitive federalism on this issue, and then in the next breath claim that marriage is their civil right? Does it not bother them particularly that a Californian would be denied a right that's demanded for an Oregonian? I mean, if you think it's unjust how can you propose it as a resolution of a dispute?

OK, concealed carry I guess. But that's only because the USC has refused to take it up. There are now something like 33 "shall issue" states, so it's a majority. I can be permit legal in half the states of the country by applying for two permits, one in Vinginia and the other in Florida. This issue is rapidly coming to a head. Does Andrew think it's appropriate to put marriage into the same grab bag? Does he seriously think we'll buy the notion that this gives us a venue for social experimentation? What do we do if it's a disaster, disallow all the marriages?

This is a one-directional gate. Once we're through it, there's no return.

Ben writes: "Divorce certainly harms the family, but how in the world does enacting one more destructive policy help the family?"

Divorce is clearly destructive to the family, by definition.

But you'll have to prove that gay marriage is somehow "destructive" to the family - that the family can be 'destroyed' by creating more families.

Actually, why wouldn't the burden of proof be on those promoting gay marriage?

And, incidentally, those families are far less likely to be accidental, as a result of shotgun weddings and the like. Gay couples don't have accidental, relationship-straining children.

You think "accidental families" aren't worth having? I'll tell you a secret. I'm the product of a "shotgun marriage." And my gramps not compelled by father to do the right thing he wouldn't have. As it is, my parents stayed together long enough to raise us in a pretty good home, and we've become reasonably well balanced adults (except for this internet addiction).

According to Frank Fukuyama the "Great Disruption" of society can largely be traced to the decline in shotgun marriages.

Marriages will become solely a religious matter and civil unions exclusively governmental.

Well, that would be a bit awkward for irreligious Americans living outside the US. Since international law recognises only marriage, it would mean that any US citizen who did not or could not have a religious ceremony, but were only permitted a governmental "civil union", would not have their relationship recognised anywhere but the US.

Better to say that the church can have "spiritual unions", but marriage is a matter for the state.

Alec, the claim that Everywhere gay marriage is implemented, overall rates of marriage are collapsing and more and more children are born out of wedlock needs shoring up with actual statistics. I invite you to provide them. (You will find - because I already looked it up - that in fact "gay marriage" (if we count all recognised same sex civil unions as gay marriage) doesn't even have a satisfactory correlation with divorce rates, let alone provide any proof of causality. For a satisfactory hypothesis, you need correlation: for the hypothesis to be proved true, you need causality. Divorce rates/children born outside wedlock have been rising all over Europe and North America in the past 15 years, both in states that recognize same-sex civil unions and states that don't. There is no evidence whatsoever that recognition of same-sex civil unions increases divorce or increases the number of children born outside marriage. None.)

As for your claim that The gay couples have already denied that environment, haven’t they? Heather may have two mommies, but does she have a daddy?

Sorry, not relevant. I agreed that marriage was a the best environment for children, because of its legal security, not because it provides one man and one woman. The gay couples who bring up children are being denied the benefits and rights of marriage, and this environment is being denied to their children - not by their parents, but by the society that says two people who want to get married, can't.

And claiming that reproductive viability makes all childless marriages illegitimate is really the shakiest leg of the anti-gay marriage argument: it means that you are illegitimizing not only same-sex marriage, but any marriage where the couple cannot have children. It really does make you anti-marriage bigots, rather than anti-gay bigots.

Oh, and thanks for calling me a bigot. You just proved my point about shutting down debate.

Actually, I don't see how I did. You are visibly and horribly bigoted against gay people - the paucity and fragility of your arguments against gay marriage rather proves that. But evidently, it hasn't "shut down debate": you're firing back. Poorly and with bad aim, but still there.

As was pointed out earlier, polygamy has no such clarity. It is inextricably tied to a number of ugly issues. Polygamous relationships are often abusive -- if not physically, then certainly emotionally. Finally, polygamy *does* very obviously create unprecedented risks for fraud. Gay marriage, again, is mechanically identical to straight marriage in this aspect; the fact that it's restricted to two people makes it much less subject to exploitation than an arrangement allowing five, six, or twelve people. Why don't these distinctions suffice?

Peter, I think the point is that if marriage is a civil right drawing the line can't be based on pragmatic considerations such as those you raise. And if it can be based on pragmatic considerations of what's good or bad for society, then it's not a civil right but a policy decision. I have no problem with that position, but bear in mind that it invalidates the argument being made in Massachussets, California and now New York.

As a straight, unmarried young woman, I support the poster upthread who wrote:

"Women know that it isn't their interests men have in mind when talking about protecting marriage and family. Especially Republican males."

Along with gays, women will very likely remember this (silly and cynical) policy stance for a number of years.

Maybe what you're implying is going over my head, but you seem to be saying that you're certain the trend toward greater discretion in coupling and decoupling has worked to the advantage of women. It has not. Except for a cadre of very-well-off females who can pretty much get what they want anyway, the expanding discretion was worked to the advantage of men, and to the disadvantage of women. Frank Fukuyama, in The Great Disruption, has some convincing numbers.

In the reight to self defense debate, there are two main points upon which supporters base their arguments: an historical one and a practical one.

The historical claim draws upon traditions hundreds of years old. There is a wealth of philosophical and legal precedent to support the idea that each human being has the inherent right to self-defense. Thus a great deal of tradition may be marshaled by those favoring gun rights.

The practical argument is also strong. Despite predictions of rampant crime, allowing citizens the means to self-defense hasn’t correlated with a surge in crime rates. At the same time, massive gun prohibition has not produced any success stories in terms of rapidly curbing violent crime. In some cases, the areas where crime is the most pervasive are those jurisdictions where gun control laws are strictest.

In both arguments, we need not import moral currency. That fact that you do not support the right to self-defense does not make you a bigot; advocates of gun control are not equivalent to slavery supporters.

But for gay marriage supporters, we see both weaknesses. They must demonize their opponents as bigoted and constantly import moral weight from other civil rights struggles because their own is so lacking.

Just as with firearms laws, proving causation is a tricky thing. Crime rates respond to a variety of things, such as judicial systems, enforcement as well as economic prospects. But overall results DO matter.

Gay marriage supporters are in a similar situation. People on this thread have asserted that gay marriage will strengthen overall marriage rates, without giving an example where this has happened. THEIR argument for causation is therefore utterly non-existent.

However, there are examples of rapid declines in marriage rates where gay marriage has become the law of the land. When the implementation of a policy produces the opposite of the intended effect, it is up to its advocates to explain this discrepancy, not their opponents.

Now, regarding my “bigotry,” I notice that you do not address my earlier points at all. How do gay couples get children? They must either use a surrogate or rely on the collapse of another marriage. Explain to me again how you call this a good thing?

“Sorry, not relevant. I agreed that marriage was a the best environment for children, because of its legal security, not because it provides one man and one woman. The gay couples who bring up children are being denied the benefits and rights of marriage, and this environment is being denied to their children - not by their parents, but by the society that says two people who want to get married, can't.”

That’s a pretty bold assertion. You have data to back this up?

I have a mountain of sociological information that says otherwise: that one of the essential advantages of married couples in raising children is the presence of gender role models. Children with married fathers and mothers learn how to be parents themselves; they learn how to interact and socialize themselves.

And I note that you didn’t answer my question: what about the “other” parent? Don’t children have a “right” to have both a father and a mother? Who are you to tell them that they should be happy with two moms and no dads? Where did dad go?

Once again, you are severing marriage from child-rearing and reducing children to little more than pets. The “right” to marry trumps the reason for marriage.

Are you looking forward to a society where 75-80 percent of children are born outside of marriage? If marriage and child-rearing are so distinctly different, this likelihood shouldn’t bother you at all. Does it?

You must think so, because you write this:

“And claiming that reproductive viability makes all childless marriages illegitimate is really the shakiest leg of the anti-gay marriage argument: it means that you are illegitimizing not only same-sex marriage, but any marriage where the couple cannot have children. It really does make you anti-marriage bigots, rather than anti-gay bigots.”

Ah, so legally decoupling parental responsibility from marriage makes you enlightened, eh? I’ll go tell all the broken families in our inner cities that it’s okay that their fathers walked out on them, children and marriage are totally separate things.

Let me spell it out for you again.

Biologically, when male and female mate, they tend to produce offspring. Indeed, that’s the only way we get offspring in this world.

Because raising this children is so important, humanity across the world has created an institution – marriage – to provide for raising and teaching these children. Marriage is about providing for the next generation.

Why do childless couples marry? Because they are reinforcing the idea that the procreative act should only be undertaken within the confines of marriage. You are well aware then when an older couple (perhaps a widow and widower) marry, they are hardly threatening marriage. No, they are reinforcing the idea that sustains marriage.

Gay marriage produces no offspring. tThis isn’t something the Supreme Court can fix, either. Gay marriage is about love, commitment and various financial advantages, perhaps, but is utterly separate from raising a family.

Here is where your argument really falls apart: there is zero consensus within the gay community to “save sex for marriage.” A large part of the reason for that is the risk of unwanted pregnancy is zero. Gay marriage is simply a lifestyle choice. And since all marriages are equal, ALL marriage is a lifestyle choice.

Logically, there is no reason for a man who sires offspring to take responsibility for them, or for him to marry before getting women pregnant. I hate to keep spelling this out for you.

Gay marriage advocates may claim it is a right; their libertarian allies may even go along out of a misguided sense of shared moral outrage; but the end result will be to restructure society along lines that benefit the very few.

As I stated earlier, once gay marriage becomes a right, so will gay behavior, which means any criticism of it will be illegal.

If, as you people keep insisting, homosexuality is completely equivalent (morally and legally) to race, preaching against it is equivalent to advocating genocide against racial minorities. We have already defined this is a crime. It is “hate speech.” How long, then, before churches that engage in “anti-gay hate speech” are shut down?

That is the road we are headed down, and I thank Patrick for his utter refusal to seriously confront it. That he thinks gun lawsuits and pigs flying are the same thing speaks volumes about his predictive powers.

Connecticut's internet law, Housebill 6883, makes it a felony to harrass a person over a computer network. "Computer Network" defined by the Connecticut legislature means:

(A) a set of related devices connected to a computer by communications facilities, or (B) a complex of two or more computers, including related devices, connected by communications facilities.

Since the Internet is computers connected through communication devices, it satisfies the legislature's definition of computer network. It appears that this legislation could be used to stop any unsolicited comments by hate speeches.

A strict reading of the law could place anyone speaking against homosexuals on the net in jail, at least when originating within Deleware.

I also would advise you look at Iowa state law, particularly:

I.C.A. s 729.5 Violation of individual rights--penalty

1. A person, who acts alone, or who conspires with another person or persons, to injure, oppress, threaten, or intimidate or interfere with any citizen in the free exercise or enjoyment of any right or privilege secured to that person by the constitution or laws of the state of Iowa or by the constitution or laws of the United States, and assembles with one or more persons for the purpose of teaching or being instructed in any technique or means capable of causing property damage, bodily injury or death when the person or persons intend to employ those techniques or means in furtherance of the conspiracy, is on conviction, guilty of a class "D" felony.

A person intimidates or interferes with another person if the act of the person results in any of the following: a. Physical injury to the other person. b. Physical damage to or destruction of the other person's property. c. Communication in a manner, or action in a manner, intended to result in either of the following: (1) To place the other person in fear of physical contact which will be injurious, insulting, or offensive, coupled with the apparent ability to execute the act. (2) To place the other person in fear of harm to the other person's property, or harm to the person or property of a third person.

There are more examples of law already in effect, but I suspect my point has been made, and the trend toward such outrages is undeniable.

Then of course, on the higher levels, we have the UN which labels Hate speech a 'war crime'... and remembering the number of people who want the US to lay itself under the wheels of the UN, this post takes on a new threat:

As a California litigator with 27 years experience, I assure you that the law has long gone past the concept of children being limited to man & wife, two-parent families. The legal system has had to step in to protect children because real people ignore your concept of "ideal families" in bearing and rearing children. We'll happily let caring, competent parents of any sort raise children given what we have to deal with.

Gosh that's great. So we can just go ahead and savage families to the hilt, and it'll all get sorted out by state interventions in family life. Man, I'm so relieved!

I think you do a disservice to Kelli and a lot of folks attributing to them the naivete of believing all families are "ideal." Nonetheless I can't quite buy the notion that having an ideal that encompasses the notion of keeping two-parent families together until all children are at least 3 years old isn't a sort of minimal ideal. And since unmarrieds are 2 to 3 times more likely to break up after conceiving children then any social shifts that weaken marriage is bound to have an impact on children. The fact that child-rearing couples are already in trouble hardly seems a good argument for attacking in institution that, as the Massachussets Justice puts it: "[is a] stain on our legal system, which needs to be eradicated."

Im not familiar with those statutes, but your examples look like anti-stalking statutes - not "hate speech" statutes.

Jesurquislac

"Since international law recognizes only marriage, it would mean that any US citizen who did not or could not have a religious ceremony, but were only permitted a governmental "civil union", would not have their relationship recognized anywhere but the US."

Calling a gay relationship a "marriage" would not mean that it would be recognized as a marriage internationally. Don't get hung up on the nomenclature.

"Better to say that the church can have "spiritual unions", but marriage is a matter for the state."

I disagree - its better to say that the state grants civil union status and equal rights to gay relationships as it grants to heterosexual relationships. It is equally pernicious in my view for the state to define “marriage” as between a man and a woman as it is to define it in any other way. You have every right to call a gay relationship a marriage, an Alec has every right to reject your definition. After all, the state doesn’t create a “marriage”, the two people joining together do.

I can take the people who oppose gay marriage because they are admitted bigots, but those who try to rationalize a ban on gay marriage are either stupid or disingenuous. I'm sorry if I've offended anyone with this

Alec, do you really consider it "a bold assertion" to claim that it's better for children if their parents are married?

Children with married fathers and mothers learn how to be parents themselves; they learn how to interact and socialize themselves.

Er... and have you got any evidence at all that children being reared by same-sex couples grow up unable to become parents themselves, without learning how to interact or socialize? Because, you know, adoption societies round the world disagree with you. The people who work for adoption societies have in-depth experience in finding good parents for children who don't have parents. And they think - just from their own personal experience - that same-sex couples can be good parents. So what actual evidence do you have to disprove their experience?

And I notice that you're carefully avoiding the issue that claiming that only reproduction makes marriage legitimate will delegitimize so many heterosexual marriages. Answer a straight question, Alec: are you in favor of making it illegal for sterile people to get married?

Logically, there is no reason for a man who sires offspring to take responsibility for them, or for him to marry before getting women pregnant. I hate to keep spelling this out for you.

Well, I wish you would spell out your reasoning, which is extraordinary. Are you claiming, then, that everyone who gets married does so with the intention of having children, and that no married man ever has children outside marriage, and that no man ever gets a woman pregnant before they get married? Ever? And that magically all this will change in an instant if gays are permitted to get married?

As I stated earlier, once gay marriage becomes a right, so will gay behavior, which means any criticism of it will be illegal.

Since I read your rather hysterical contributions to this thread, I have read Orson Scott Card's homophobic rant about gay marriage published in the Ornery American, and now I understand where you're coming from - you read OSC's column, or someone's report of it, and you believe everything you've been told. It's a complete nonsense, Pete.

I don't know exactly what you mean by "gay behavior", but assuming that you mean gay sex, well, yes, it is legal. SCOTUS has abolished the sodomy laws, and even before the sodomy laws were got rid of, there were many gay sex acts that were completely legal. And yet, people were and are allowed to criticise gay sexual behavior. The idea that just because something is legal it's a crime to criticize it is so ridiculous I can't believe OSC dreamed it up or anyone swallowed it. Divorce is legal. Abortion is legal. The war on Afghanistan was legal. Voting for George W. Bush was legal. Voting against George W. Bush is legal. John Kerry's principled stand against the Vietnam war was legal. And criticizing all of these legal activities is perfectly legal. You're talking nonsense, Alec: Orson Scott Card was scaremongering.

I'm sorry if I was unclear, what is either stupid or disingenuous is opposing gay marriage while claiming to not be a bigot. One is either so stupid that they don't recognize bigotry or they are being disingenuous by claiming to not be a bigot.

What I can't figure out is why you're expending so much "ink" to argue with a bunch of ignorant or lying bigots? Are you ______ or _______ ?

You are conveniently overlooking the fact that there was no consensus regarding the very legitimacy of certain ballots. The talents of a psychic mind reader would have been required to determine the intentions of many voters. Thus, a “recount” would have been inherently senseless. Moreover, there was no way in hell to accurately recount ballots in such a tight election involving millions of people. A human error involving just one ballot in fifty thousand would have inevitably skewed the results. A counter need only be a bit tired and make a minor mistake---and their whole effort would have been in vain. The first recount may have gone to Gore, the second one to Bush, and this nonsense would have gone on forever. A real scandal occurred during that time period: the academics who specialize in statistics were too cowardly to admit the truth. The recount was a statistical impossibility and they knew it.

Well, statistrictly speaking, such errors are a wash, no matter how many there are. And I'd add that there has been a rather convincing recount of the ballots since the election, demonstrating that Bush would have, in fact, won. So the price that G.W. Bush paid for what were blatant attempts to obstruct a full recount is that he's largely regarded by a significant part of the population as a usurper. I don't think for one moment any of this, on either side, was based on "principle." I've just been involved in too many political campaigns to believe anything of the sort.

Sorry about the OT comment, but I felt I had to speak of for the statisticians to whom no one really listened at the time.

Ultimately, of course, the margin of victory was simply smaller than the margin of error in the vote count, so the only real way to resolve the election fairly would have been a coin toss, or (as they resolve a tied election in New Mexico) a game of stud poker between the candidates.

I agree with TexasToast that the statutes you cite are properly termed "anti-stalking" laws, not "hate speech" laws. We have California equivalents, and I've represented clients in litigation concerning those.

Scott,

I quite agree that children are best raised in successful marriages. But what happens when they're not? The children and society can't afford to let them be abandoned to their fate. So we have this whole pile of laws and bureaucracies whose intrusive powers are limited by their budgets.

I haven't had to deal with any horror stories involving intrusive child protective service agencies, but I read cases about those in legal papers and magazines. The press prints horror stories about other states, notably involving home schooling.

I say this to emphasize that there are no easy answers. Solutions to problems create new problems. Real life is messy like that.

IMO one of the major causes of the problems we are both worried about is that the public schools have abandoned their old role in moral instruction. I blame multiculturalist crap for that.

But no one has yet drawn any rational connection between letting gays marry and those problems. Stanley Kurtz tried, but his reasoning was pure Green - Bjorn Lumborg's _Skeptical Environmentalist_ applied to it in spades.

Jesurquislac & TexasToast,

IMO the public's daily useage will determine whether civil unions are called marriages. I have a personal preference for calling the one with legal obligations a "civil union", and ones done in church "marriages", but California used to have something called "common-law marriage" which basically held that two people living together as husband & wife, and describing themselves as husband & wife, made into a real marriage over time. Something like a prescriptive easement. Those haven't been recognized at law for many years but the concept lives on in the minds of older unchurched poor whites in my area, which is a classic cow county.

Jesurgliac,

IMO Alec is right that children do better if their parents are married heterosexuals than if they are not married, or are a committed homosexual couple (all other things being equal). The latter difference seems to be more a matter of socialization, but it exists and California now has adequate data to measure it.

Where Alec goes wrong is assuming that all other things are necessarily equal. Committed homosexual couples with children tend to have significantly better moral character than ordinary heterosexual couples. Homosexuals with children _want_ children a lot more than the average heterosexual, and try harder.

Patrick,

People can be concerned about gay marriage without being bigots. Not everyone is familiar with the subject.

I quite agree that children are best raised in successful marriages. But what happens when they're not? The children and society can't afford to let them be abandoned to their fate. So we have this whole pile of laws and bureaucracies whose intrusive powers are limited by their budgets.

I haven't had to deal with any horror stories involving intrusive child protective service agencies, but I read cases about those in legal papers and magazines. The press prints horror stories about other states, notably involving home schooling.

I think the real question is "How do we maintain a minimum of children who fall into this category?" And, abandoning all hope of keep parent together until their children are grown, the logical minimalist postition has to be: place severe constraints on divorce or breakup of couples with children younger that age three. That, at least, gets kids past the point where their IQ potential is being determined. And that would also tend to minimize the necessity of later government involvement in correcting for the harm done to innocents by the exercise of freedoms by their parents. Did I say that right?

I say this to emphasize that there are no easy answers. Solutions to problems create new problems. Real life is messy like that.

Actually that's kind of a fallacy. There are no perfect answers, and genuine answers aren't easy. But that's not a very good reason for turning an "escape valve" into mere escapism.

IMO one of the major causes of the problems we are both worried about is that the public schools have abandoned their old role in moral instruction. I blame multiculturalist crap for that.

Who care, really? The relative impact of the schools on either achievement or moral development is all but nonexistent. The family is where all the action is. That's what the Coleman Commission taught us many years ago, and there's really never been a serious challenge to that conclusion. See David J. Armor's recent book Maximizing Intelligence for an update.

But no one has yet drawn any rational connection between letting gays marry and those problems. Stanley Kurtz tried, but his reasoning was pure Green - Bjorn Lumborg's _Skeptical Environmentalist_ applied to it in spades.

That's just patently untrue, but I'm reluctant to elaborate unless you can demonstrate that you understand what indirect and interactive effects are. I find, rather perplexingly, that many people on the pro-same-sex-marriage side of the debate simply assume that indirect and interactive effects aren't real, or are by definition diminishingly small.

Typo, Scott: the recount published in October 2001 demonstrated that Bush would have, in fact, lost.

Damn, I wish now I had kept that link. But there is a more recent and comprehensive study demonstrating that no matter which way you cut the recount, Bush would have won. Perhaps someone here is more of a packrat about links than I am.

So the price that G.W. Bush paid for what were blatant attempts to obstruct a full recount is that he's largely regarded by a significant part of the population as a usurper.

And rightly so: he lost the election, he got appointed President.

Well, my point was that it was unwise, not that it was "rightly so." And as I said above, I think your empirical references are out of date.

That does not change my conclusion that the 2000 election was a statistical tie, and that there simply is no way to finally resolve it by counting votes. The way it *was* resolved, by having the candidates duke it out on the field of legal/political honor is as good as any, but not significantly better than a coin toss.

More importantly, the margin of victory in Florida was a couple of orders of magnitude smaller than the number of voters illegally removed from the electoral rolls by Jeb Bush/Katherine Harris.

Well, you're just perpetuating irrelevant strife here. The Republicans could just as legitimately argue that the media, by calling the election for Gore before the polling places in the panhandle had closed, gave at least that margin to Gore. There's just no end of this sort of thing, and it's all pretty immature. Moreover, the time limit for raising this sort of thing has long since expired.

Bush is legitimately President. If you think a mistake was made you can correct it in 2004. (Unless you're inclined, as some seem to be, to "pre-spin" the 2004 results by claiming irregularities in computerized voting machines. Whatever.)

Children with married fathers and mothers learn how to be parents themselves; they learn how to interact and socialize themselves.

Er... and have you got any evidence at all that children being reared by same-sex couples grow up unable to become parents themselves, without learning how to interact or socialize? Because, you know, adoption societies round the world disagree with you. The people who work for adoption societies have in-depth experience in finding good parents for children who don't have parents. And they think - just from their own personal experience - that same-sex couples can be good parents. So what actual evidence do you have to disprove their experience?

Bithead isn't posing an implausible theory. The data on it, as a general proposition, almost certainly suffer from problems of selection bias, both in terms of the sample of heterosexual and homosexual couples. The fact that he can't prove it doesn't mean it's not true. The evidence is inconclusive.

And I notice that you're carefully avoiding the issue that claiming that only reproduction makes marriage legitimate will delegitimize so many heterosexual marriages. Answer a straight question, Alec: are you in favor of making it illegal for sterile people to get married?

Elderly couples demonstrate to their reproductive children the possibility and long term potential of fidelity, and to a somewhat lesser extent so do so-called "barren" hetero couples. The conservative case for gay marriage is that they would demonstrate the same. The evidence is inconclusive, one way or 'tother. However, the correlation between same-sex marriage and marriage-like arangements in Scandinavia and Holland and the dissolution of families at least suggests that this is an important question. (Note: I did not say that there's a correlation with divorce. That's a different thing.)

Logically, there is no reason for a man who sires offspring to take responsibility for them, or for him to marry before getting women pregnant. I hate to keep spelling this out for you.

Well, I wish you would spell out your reasoning, which is extraordinary.

I have a suggestion for you, Juras... whatever. Read Frank Fukuyama's The Great Disruption. He provides reasoning as well as plenty of empirical evidence for this conclusion in the aggregate.

My experience here is at the margins - I'm a trial court research attorney with some but not much family law experience while in private practice. My job requires that I be familiar with the laws and bureaucracies concerning failed families and abandoned children.

My wife's experience is similar but for a different reason - she teaches continuation high school. 40-45% of her students are either mothers, pregnant females, or have juvenile records. 80% of her students are Hispanic and 20% white. Almost all of the whites and many of the Hispanics are from broken homes.

The worst problems we see in this area concern children who _never_ lived in two-parent families, and their parents generally had the same problem when they were growing up. I.e., it is less a matter of keeping their parents together than of getting them to marry in the first place.

Schools used to serve as society's fallback for moral instruction when families failed at it. My wife contends that the major reason schools dropped that mission was that they were just overwhelmed - backup for a small minority was one thing, but having to serve as the primary source just wasn't possible and broke the whole system.

I have some knowledge of direct & interactive effects, but a contention that gay marriage will have a material cummulative effect on marriage overall, given what has and is happening for wholly unrelated reasons, is so far-fetched that I have a show-me attitude.

Stanley Kurtz is the only one I know of who tried based on non-anecdotal evidence. He at least zeroed in on the prevalance of marriage issue, which IMO is critical. If you can point to better sources on this, please do so.

And this week's Economist just arrived. Its article on page 9 points out something Kurtz argued, but reached a quite different conclusion, and I'll quote the first sentence of the next to last paragraph, and all of the last paragraph, from the Economist's page 9 article:

"The importance of marriage for society's general health and stability also explains why the commonly mooted alternative to gay marriage - a so-called civil union - is not enough ...

Yet that would be both wrong in principle and damaging for society. Marriage, as it is commonly viewed in society, is more than just a legal contract. Moreover, to establish something short of real marriage for some adults would tend to undermine the notion for all. Why shouldn't everyone, in time, downgrade to civil unions? Now that really would threaten a fundamental institution of civilization."

The Economist concludes that gay marriage will strengthen the institution (higher up in the article), "... for it would increase the number of couples that take on real, rather than simply passing, commitments. The weakening of marriage has been heterosexuals' doing, not gays', for it is their infidelity, divorce rates and single-parent families that have wrought social damage.

The fact that he can't prove it doesn't mean it's not true. The evidence is inconclusive.

The evidence is not there.

Elderly couples demonstrate to their reproductive children the possibility and long term potential of fidelity, and to a somewhat lesser extent so do so-called "barren" hetero couples.

Ah. So it's okay for sterile people to get married, providing they are faithful to each other. Does that mean you intend to invalidate every marriage in which either partner is ever unfaithful to the other? (And presumably, if these sterile people don't adopt children, their demonstration of fidelity is, according to what you've said, worthless.)

And you're claiming that gay couples can't demonstrate fidelity, and straight couples can? Sorry, does not compute. Are you claiming that Bill and Hillary Clinton weren't ever legally married because Bill was unfaithful to Hillary?

However, the correlation between same-sex marriage and marriage-like arangements in Scandinavia and Holland and the dissolution of families at least suggests that this is an important question.

Huh? You would need to first explain what you mean by "dissolution of families", if not divorce, and then prove that there is any correlation between same-sex marriage - looking not only at countries were same-sex civil partnership is legal, but at similiar countries where it isn't. If you find a marked trend different from all other countries in Western Europe and North America, exclusive only to countries where same-sex civil partnership is legal, then you'll have somewhere to start.

And Scott... are you claiming then that, as I asked above, that everyone who gets married does so with the intention of having children, and that no married man ever has children outside marriage, and that no man ever gets a woman pregnant before they get married? Ever? And that magically all this will change in an instant if gays are permitted to get married?

The Republicans could just as legitimately argue that the media, by calling the election for Gore before the polling places in the panhandle had closed, gave at least that margin to Gore.

Well, of course the Republicans could argue that. Their difficulty with that would be that the media called the election for Bush before polling had closed... creating the lasting myth that Bush won. But, hey, why worry about a little lie like that?

Moreover, the time limit for raising this sort of thing has long since expired.

Please note, I didn't raise this issue in the thread: I merely responded with the facts when the issue was raised.

And while by time the votes were finally counted, establishing that Gore had won in Florida, it was too late to change the results. However, I think that coming up to the next Presidential election is exactly the right time to keep reminding people that Bush lost the 2000 election, yet the Republicans finangled him into the Presidency anyway. This must not happen again: and no, the issues about the Diebold machines are real and significant.

The _Economist_ article crystallized some of my thinking on this subject, and it's not good. To the extent the _Economist_ is correct that "civil unions" imperil marriage, we may have a Greek, aka inevitable, tragedy coming.

The arguments Stanley Kurtz raised against gay marriage really apply to civil unions, not to gay marriage per se. That's why the _Economist_ argued in favor of gay marriage and against civil unions. I tend to doubt the _Economist_ here, because the outcome it sees is happening absent civil unions. It is endemic in some ethnic/cultural groups (urban blacks, poor whites of Scots-Irish backgrounds ("Okies" in California), etc. We'd had civil unions in California for several years and the same old undesirable trends haven't changed in the least.

But this is pertinent to my point earlier that the lawyers here are agreed (my wife has a JD though she hasn't practiced in 16 years) that there will be an inevitable separation of the civil contract aspects of marriage into civil unions separate from a purely religious institution of marriage.

We are agreed on this because lawyers draft the laws, and do so to make them easier for the judicial system to administer. For examples of such issues, see David Frum's questions for Andrew Sullivan here -http://www.nationalreview.com/frum/frum-diary.asp.

The judicial system has already resolved the child custody issues Frum described, and many of the contract & probate issues, but he still has a point. It will be much easier for judges and lawyers to resolve disputes if the contract & child custody aspects of civil unions are uniformly enforced in every state. I mentioned above that the FMA's presently draft impacts the Uniform Custody of Minors Act.

This creates considerable pressure to resolve the conflicting pressures of Christian bigots, gay rights groups, "equality before the law is the only cognizable objective" groups, plus state legislators, Congressmen & Senators who desperately want to avoid a political issue which can only hurt them, by separating civil unions from religious marriage.

IMO that will happen. If the _Economist_ is correct, this is the worst possible outcome.

It appears that Christian bigots are using the undesirable aspects of civil unions to argue against gay marriage, while gay marriage advocates are using civil unions as a stepping stone towards gay marriage.

The solution is to meet the bigots head-on, which is where Congress comes in. That just won't happen. So we may get a compromise of the worst of all sides.

I tend to doubt that, though. Most to almost all California gays who make civil uniions want marriage, not civil unions. They could make contracts before - all civil unions did was regularize the process and affect insurance & governmental bureaucracies (visiting rights for the dying, etc.).

So why do gays prefer marriage to civil unions? Might it be because of the former's spiritual nature? Though my wife just pointed out that spiritual values are not something a government can provide.

I agree with TexasToast that the statutes you cite are properly termed "anti-stalking" laws, not "hate speech" laws. We have California equivalents, and I've represented clients in litigation concerning those.

THe wording has already been applied to 'hate speech' in the Florida case. I'd advise doing some research before commenting further.

The florida statute appears to be a hate crime statute - with additional penalties if prejudice is evident in the comission of a crime. Hate speech would not appear to cause application of this statute unless another crime was being committed at the same time.

"The penalty for any felony or misdemeanor shall be reclassified as provided in this subsection if the commission of such felony or misdemeanor evidences prejudice based on the RACE, color, ancestry, ethnicity, religion, sexual orientation, or national origin of the victim:"

Do you have a citation where it was used without the comission of another crime? I wound be interested in seeing it.

Most to almost all California gays who make civil uniions want marriage, not civil unions. They could make contracts before - all civil unions did was regularize the process and affect insurance & governmental bureaucracies (visiting rights for the dying, etc.).

According to a gay friend of mine not many gay men actually want to get married, and a fairly large percentage of those who do already have the equavalent of what is euphemistically referred as an "open marriage." Besides, if this is simply a regularization of the process I fail to see how the eventualities that the Economist frets over could really be salient. I think there's some muddled thinking there. To whit:

So why do gays prefer marriage to civil unions? Might it be because of the former's spiritual nature?

Nope, they prefer "marriage" because it's an already established "brand name." The problem is that it's an "opposite-gender-accomodating" brand name, with the objective of maintaining the best circumstances for child-rearing. In other words, it isn't even an apporpriate institution for same-gender-accomodating issues. I'm talking here about the cultural, rather than the legal, components. Essentially what gays want to do is confiscate the brand name on the pretext of "civil rights." They might be able to buy in, if they were the least respectful of the present key-holders. But that simply isn't the case.

And while by time the votes were finally counted, establishing that Gore had won in Florida, it was too late to change the results. However, I think that coming up to the next Presidential election is exactly the right time to keep reminding people that Bush lost the 2000 election, yet the Republicans finangled him into the Presidency anyway. This must not happen again: and no, the issues about the Diebold machines are real and significant.

Again, the most recent vote-counting studies indicate that Bush won Florida no matter under what "rules of combat" the recount is taken. The earlier study (done by a Miami paper in 2001 I believe) suggested that Bush would have won had the recount been limited to the counties that Gore wanted to focus on, but would have lost in a general recount (that Gore was not asking for). So even going by those results it's not really salient to say that "Gore was robbed," except by himself. And I have to say that if Dems insist on this sort of rhetoric all they'll do is convince voters they have poor judgment.

I have a hunch a certain contingent will be complaining about the Diebold machines into the next millennium. If you actually want to win an election it might be a good idea to concentrate on some new approaches to the main issues without dipping too deeply into the policy orientations of the FDR administration.

As for the early call, it doesn't really matter which candidate they called the election for. The complaint that the Republicans who would have voted for Bush went home without voting is still valid. (And it is my recollection that the initial false call was for a Gore win, not a Bush win. I could be wrong but since I was routing for Gore it sort of sticks in my mind. Again, it's not a critical issue unless you're really scraping the bottom of the barrel for an argument.)

And the real bottom line is that the Florida election was a statistical tie, in the sense that the margin of victory was unredeemably smaller than the margin of error. That's just a hard fact.

For a specification of "family dissolution" and how it differs from "divorce rate" see the recent article in the Weekly Standard. I don't have the cite, but it should be easy to find.

However, the correlation between same-sex marriage and marriage-like arangements in Scandinavia and Holland and the dissolution of families at least suggests that this is an important question.

Huh? You would need to first explain what you mean by "dissolution of families", if not divorce, and then prove that there is any correlation between same-sex marriage - looking not only at countries were same-sex civil partnership is legal, but at similiar countries where it isn't. If you find a marked trend different from all other countries in Western Europe and North America, exclusive only to countries where same-sex civil partnership is legal, then you'll have somewhere to start.

I think you're confusing a regression analysis with a simple correlation. Since we aren't inferring causation it would be hard to specify a regression model in the first place. My argument isn't that gay marriage or marriage-like arrangement negatively impact family dissolution, but that the evidence is inconclusive, although suggestive.

And Scott... are you claiming then that, as I asked above, that everyone who gets married does so with the intention of having children, and that no married man ever has children outside marriage, and that no man ever gets a woman pregnant before they get married? Ever?

How did you get that from what I said? I mean, my mother was pregnant before she got married. That isn't uncommon at all. My grandfather compelled the marriage, and by doing so more or less ensured an enormous advantage for the children of that union in our later life. This is the primary function of marriage. That certainly doesn't mean that it doesn't also have ancillary functions, or that those ancillary functions aren't at least neutral with regard to the primary function. (I doubt if they'd continue were they not at least neutral.)

And that magically all this will change in an instant if gays are permitted to get married?

Not by magic, unfortunately. If that were the case we could waive a wand and change things back. I don't imagine people prognosticated huge changes in the direction of family dissolution as a result of birth control either, but as Fukuyama makes clear in The Great Disruption they sure happened. Unforeseen consequences. Essentially what you're asking the hetero community to do is take your unvarnished word for it that there will be no such changes, without any evidence and without even the respect of acknowledging that their concerns are rational.

The worst problems we see in this area concern children who _never_ lived in two-parent families, and their parents generally had the same problem when they were growing up. I.e., it is less a matter of keeping their parents together than of getting them to marry in the first place.

Nonetheless you're willing to risk the possibility that a change in the institution of marriage might make it less legitimate for potential subscribers?

Schools used to serve as society's fallback for moral instruction when families failed at it. My wife contends that the major reason schools dropped that mission was that they were just overwhelmed - backup for a small minority was one thing, but having to serve as the primary source just wasn't possible and broke the whole system.

I suppose it's quite possible that schools assigned themselves that role, or that people had that expectation. I don't think they were much of a fallback, however. We might easily spend those same resources more effectively by keeping families together, or instituting early headstart programs for children from families that are already unsalvageable. And by early headstart, I mean prior to age 3. After that age you're wasting time and resources in terms of intelligence, though there's some research suggesting that better work habits from later headstart programs persist through the 7th grade. I have limited faith that schools can pick up the slack, as you can tell.

I have some knowledge of direct & interactive effects, but a contention that gay marriage will have a material cummulative effect on marriage overall, given what has and is happening for wholly unrelated reasons, is so far-fetched that I have a show-me attitude.

The fact that it's happening for wholly unrelated reasons is why it might have an effect. Marriage is "designed" (in an cultural evolutionary sense) to fulfill a specific role. If we ask it to fulfill a different (and purely ancillary) role we have no way of knowing that the effect might be. But it can hardly fulfill that role without, itself, adapting as an intuition. And those concerns are quite rational, I assure you.

Stanley Kurtz is the only one I know of who tried based on non-anecdotal evidence. He at least zeroed in on the prevalance of marriage issue, which IMO is critical. If you can point to better sources on this, please do so.

Well the problem, of course, is that we lack data. The Weekly Standard article discusses why a focus on divorce and marriage rates is inadequate to get at the issue of family dissolution, but itself makes the error of concluding that correlation is causation. To chase out issues of causation there's really no substitute for a very expensive methodology called a "panel study." And it would have to be conducted in Europe. Moreover, the only countries that have same-sex marriage, or similar, laws are ethnically very homogeneous. So they have a built in immunity from the effects of family dissolution. Were the US to have the same level of family dissolution as Iceland I doubt that the culture would survive.

And this week's Economist just arrived. Its article on page 9 points out something Kurtz argued, but reached a quite different conclusion, and I'll quote the first sentence of the next to last paragraph, and all of the last paragraph, from the Economist's page 9 article:
"The importance of marriage for society's general health and stability also explains why the commonly mooted alternative to gay marriage - a so-called civil union - is not enough ...
Yet that would be both wrong in principle and damaging for society. Marriage, as it is commonly viewed in society, is more than just a legal contract. Moreover, to establish something short of real marriage for some adults would tend to undermine the notion for all. Why shouldn't everyone, in time, downgrade to civil unions? Now that really would threaten a fundamental institution of civilization."
The Economist concludes that gay marriage will strengthen the institution (higher up in the article), "... for it would increase the number of couples that take on real, rather than simply passing, commitments. The weakening of marriage has been heterosexuals' doing, not gays', for it is their infidelity, divorce rates and single-parent families that have wrought social damage.

Well, what can I say? It's a valid theory. Given the stakes I think it would be folly to embark on a writ-large social experiment based on an unproven theory. And don't you think it's a little disreptful of those who depend on the present institution to treat all their concerns as irrational or bigotted?
posted by: Scott (to Tom again) on 02.24.04 at 03:27 PM [permalink]

“It appears that Christian bigots are using the undesirable aspects of civil unions to argue against gay marriage, while gay marriage advocates are using civil unions as a stepping stone towards gay marriage.”

I am quite troubled by the term “Christian bigot”. A true Christian IMHO cannot be a bigot, making the term a pernicious oxymoron. I have many friends and family who are deeply committed Christians and who do not have a bigoted bone in their body, but are nonetheless genuinely troubled by the idea of gay marriage. I think there is a real distinction between racial, religious, ethnic or ideological bigotry and disapproval of lifestyle choices due to sincere beliefs. One can love the sinner and not the sin, and many sincere and good people truly believe that homosexuality is a sin.

Before you go ballistic and say that a homosexual preference is not a choice but is a fact, be assured that I am aware of this. It is unfair, however, to think that someone who feels strongly differently is doing so out of mean spiritedness or spite. Some of them are, but it is equally prejudicial to ascribe bad motives to someone who truly believes marriages are more than sociological constructs.

Concern about adverse effects on the vital institution of marriage, due to the subsequent effects on childrens' social development, is IMO the only valid grounds for opposing gay marriage and/or civil unions. There is overwhelming data that children are best raised by their birth parents in intact marriages.

But there really are a honking lot of Christian bigots on the issue, of whom the smart ones play games with statistics to support their biases. I am familiar with such games, starting with the Nuclear Winter hoax. I did the scientific detective work on that, gave the evidence of Sagan's overt falsehoods about radiological effects to S. Fred Singer and he used it to ruin Carl Sagan's scientific career. Sagan had to start a new one as a writer, chiefly of science-fiction. His non-fiction __Demon-Haunted World_ had a most ironic title given the reason for his career change.

We've since seen lots and lots of junk science, but I was one of the first to do something effective about it, and that was twenty years ago.

I am very skeptical about the arguments against gay marriage given the biases involved. Stanley Kurtz is one of the few I respect - while his _Weekly Standard_ article has major flaws, he is at least looking at hard evidence and trying to find patterns.

Scott, How did you get that from what I said? I know it's complicated to keep track of things on this thread. Alec claimed in an earlier post that all of these things (that everyone who gets married does so with the intention of having children, and that no married man ever has children outside marriage, and that no man ever gets a woman pregnant before they get married? Ever?) would magically happen (and, presumably, Alec believes, aren't happening now) if the state allowed gay marriage. I challenged him on this, calling his reasoning "extraordinary". You responded to my challenge, claiming that I should read Fukuyama's book and that this would answer all my questions. You clearly don't agree with Alec, yet your response appeared to assert that Fukuyama's book would prove to me that all of these changes would magically happen if gay marriage was permitted.

To me, this whole rhetoric - this willingness to oppose same-sex marriage based on untested hypotheses - is so uncoordinated and based on such frangible logic that it proves to me that the real basis of opposition to same-sex marriage is bigotry - a bigotry that the opponents don't want to acknowledge.

If there are MANY reasons, as you claim, Bithead, why hasn't anyone so far been able to elucidate even one good reason for opposing gay marriage? So far all that anyone's come up with is anti-equality, anti-liberty, anti-sanctity.

Adding to your confusion is your own preconception.

Actually, I never expect people to behave like bigots. It always comes as an unpleasant surprise when they do.

Do you have a citation where it was used without the comission of another crime? I wound be interested in seeing it.

I think I've already stated that there have been no convictions (yet) based on speech alone, based on that statute. However, my doubt is next to non-existant that such will occur. I look at the twisting our US Constitution has undergone the last 60 years, and it seems clear to me; It's not a matter of creating new law(s) to get to that point, simply the mis-application of these existing laws... the kind of application our courts have been all too prone to of late.

Nope, that's not the problem. ;-) As Tom Holsinger points out above, the "good reason" most commonly offered is that giving same-sex couples legal access to marriage will have a negative impact on mixed-sex marriages.

But as Tom also points out, no one has yet been able to show how this will happen.

Oh, but, you see, that's exactly the point I'm making; They have, and repeatedly so.

No, they haven't, Bithead. It "all goes for naught" because they fail to provide hard facts. They assert that gay marriage will damage straight marriage, but an assertion (no matter how many times repeated) is not a fact.

Nobody has yet dared to address the issue of the effect on the culture as a whole... and perhaps understandably so.

Indeed. Orson Scott Card attempted to do so, but had to lie extensively in order to make his claim that same-sex marriage would have any damaging effect on "the culture as a whole".

This social change has been happening for fifty years and more, Bithead. It didn't begin "suddenly": the Mattachine Society, the Daughters of Bilitis, Stonewall, and much more, are all part of "the culture as a whole": are part of American history and culture. Try to claim that they're having a damaging effect? Prove it. Cite facts, not theories.

Your complaint is that the current nature of marriage within our society is to exclude homosexuals. In this you are correct.

Nope. My point is that the current marriage law excludes same-sex couples from marrying. The nature of marriage naturally includes same-sex couples: same-sex couples have been getting married in religious ceremonies in the US and elsewhere for years.

Do you really propose that we can alter the concepts of marriage, ...which would be required were we to include homosexuals.... without altering already existing marriages?

I am not proposing that we alter the concept of marriage at all. The concept of marriage - two adults who wish to enter a legal/physical partnership - will remain unchanged. It's a matter of giving same-sex couples access to marriage, not of changing marriage itself.

Same-sex marriage exists in the Netherlands, and has done for over three years. To validate your hypothesis, show me how the existence of same-sex marriage in the Netherlands has altered all previous marriages carried out in the Netherlands.

1 a (1) : the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law (2) : the state of being united to a person of the same sex in a relationship like that of a traditional marriage b : the mutual relation of married persons : WEDLOCK c : the institution whereby individuals are joined in a marriage
2 : an act of marrying or the rite by which the married status is effected; especially : the wedding ceremony and attendant festivities or formalities
3 : an intimate or close union

So are you willing to accept the dictionary definition of marriage, Bithead, since it was you who called upon it - though evidently you didn't think to look it up first?

I took a look at your references to "hate" speech and am afraid you may have skimmed the passages you post, or are relying on someone else's interpretation. Either way, I would suggest rereading them (carefully this time) and focusing on whether these constrain protected speech or merely extend current assault laws (yes, assault relates to verbal threats, battery is physical harm) to the realm of the internet, as is the case in Connecticut. Threatening statements have been outlawed since well before the current rise of politically correctness.

As far as I can tell, as long as you don't threaten anyone, these laws have absolutely no bearing on you. There is a big difference between saying gays shouldn't marry and saying you will harm any gay who tries to marry. Every single one of these laws addresses precisely this distinction. None of these laws preclude you, or any other yahoo, from saying that homosexuality is a crime against nature, a perversion, detrimental to society, etc. All they do is prevent person A from telling person(s) B that they will harm them if they continue to be gay (or black, or latino, or a woman). Its pretty black letter...

The amendment is not one that would keep states from allowing civil unions. A legislature that supports such arrangements would be allowed to do them. Bush said that in his initial five-minute speech on the subject. He referred to his proposed amendment not interfering with states' abilities to make other arrangements. The strategy is to keep a particular plaintiff from artificially inserting a same-sex union into the existing marriage statutes. IN a state in which the legislature has not addressed same-sex marriages, a judge allows that allows same-sex marriages to fit into the definition is ignoring the will of the legislature. Any legislature, like Vermont has, can come up with a civil union statute. But until they do, the claim that by "marriage" the legislature meant gay marriage is pure fantasy.

To say whom to love is right or wrong is not a political judgement, the government should have no say in that. But I believe that the only reason why George is shorting his self out and making this a public issue is to pull away from publicity on his 9/11 mistakes. We do have a weak-minded President. Despite his Christian views and outlooks, this is a political movement in the game of Government Chess. He needs this to make his self look as strong as possible, so his followers wont look upon him as a self-serving, weak-minded, intellectually retarded, and non-intellegent man. No one will EVER tell me that my happiness will lye in the hands of the govevernment.